Author
The LITP lays down the grounds for restricting the freedom of movement of applicants and foreigners under transfer, including through detention in a Reception Centre for Foreigners.[1] Detention may be ordered for 4 reasons,[2] if it is established by individual assessment that other measures (see section on Alternatives to Detention) would not achieve the purpose of restriction of freedom of movement:
- To establish the facts and circumstances of the application which cannot be determined without limitation on freedom of movement, in particular where there is a risk of absconding;
- To establish and verify identity or nationality;
- To protect national security or public order; or
- To prevent abuse of procedure where, on the basis of objective criteria, which include the possibility of access to the procedure of approval of international protection, there is a well-founded suspicion that the intention to apply for international protection expressed during the procedure of forced return was aimed at preventing the procedure of removal.
In practice, however, detention is not used systematically. Although most applicants do not possess any identity documents, up to now this was rarely used as a ground to restrict their freedom of movement.
Moreover, Article 54(3) explicitly provides for the possibility to restrict freedom of movement or detain a foreigner for the purposes of transfer to another Member State under the Dublin Regulation only in cases where there is a “risk of absconding”. It should be noted that the LITP does not refer to a “significant risk of absconding” in accordance with Article 28(2) of the Dublin III Regulation, however.
The existence of a “risk of absconding” is determined on the basis of all the facts and circumstances of the concrete case, especially with regard to:[3]
- Previous attempts to abscond;
- Refusal to submit to verification and establishment of identity;
- Concealing or providing false information on the identity and/or nationality;
- Violation of the reception centre’s house rules;
- A Eurodac ‘hit; and
- Opposition to a Dublin transfer.
In practice, however, detention is rarely used during the Dublin procedure. According to the Ministry of Interior, detention was used in 2 cases during the Dublin procedure in the course of 2018.[4] No information on detention during the Dublin procedure is available for 2021.
The LITP specifies that detention in Reception Centre for Foreigners may be imposed if, by individual assessment, it is established that other measures would not achieve the purpose of restriction of freedom of movement.[5] Prior to the LITP, the majority of detention decisions were uniform and based on the same grounds (therefore no individual assessment had been done), while under the LITP individual assessment should be done when ordering detention. However, in 2019 a few attorneys at law and one legal representative from an NGO have reported that decisions on the restriction of freedom of movement do not contain any reasoning behind the individual assessment. They simply state that the individual assessment has determined that detention is necessary because other measures cannot achieve the purpose of restricting freedom of movement.[6] The similar was reported in 2021 by two attorneys at law.[7]
According to the Ministry of Interior, the individual assessment requested for the purpose of the restriction of freedom of movement is done based on personal circumstances such as belonging to vulnerable group (unaccompanied child, person with disability, health problems, family relations) as well as based on behaviour of the applicant for international protection and his or her attitude towards the House Rules of the Reception Centre for Applicants for International Protection.[8]
In practice applicants are usually detained where they request international protection after having been issued with a deportation order and situations where they have left or attempted to leave Croatia before the completion of the procedure for international protection.
Where a person expresses the intention to apply for international protection from the detention centre, after having been detained on the basis of one of the immigration detention grounds as specified by the Law on foreigners in the Reception Centre for Foreigners, he or she must either be released and transferred to an open centre (Zagreb or Kutina) or must be served with a new restriction of freedom of movement decision on one of the grounds for detention as specified by LITP. According to the Border Police Directorate, if the intention is expressed in the Reception Centre for Foreigners in Ježevo, the intention is then received by the centre, which then informs by email the service dealing with applicants for international protection about the intention to seek international protection. The Service for Reception and accommodation of applicants for international protection organises the lodging of the application for international protection on the first following working day and, depending on the assessment, issues the decision on the restriction of freedom of movement, i.e. a detention order. If the decision on the restriction of freedom of movement is not issued, the applicant would be moved to the Reception Centre for Applicants for International Protection. Intentions to apply for international protection that are expressed in the Transit Reception Centres in Trilj and Tovarnik are received by local police stations based on their territorial jurisdiction.[9]
In 2021, the Ombudperson conducted one investigative proceedings in regard to preventing access to international protection in the reception center for foreigners.[10]
[1] Article 54(5) LITP.
[2] Article 54(2) LITP.
[3] Article 54(4) LITP.
[4] Information provided by the Ministry of Interior, 28 January 2019.
[5] Article 54(6) LITP.
[6] Information provided by attorneys at law on 3 December 2019, 6 December 2019, 16 December 2019 and 21 January 2020.
[7] Information provided by attorneys at law on 27 December 2021 and 29 December 2021.
[8] Information provided by the Ministry of Interior, 2 March 2017.
[9] Information provided by the Ministry of Interior, Border Directorate, 17 August 2018.
[10] Ombudsperson, Annual report 2021, available in Croatian at: https://bit.ly/37ypocG.