Legislative harmonisation as one of the prerequisites for EU membership not only means the adoption of particular provisions, but also implementation of these provisions in case-law. The enforcement of new legal provisions which implement specific directive cannot satisfy the demand for harmonisation if they are assigned with meaning different from those provisions with which it attempts to comply. Even more, acceptance of the European law by the state bodies of the Republic of Croatia is an instrument of real harmonisation of domestic law. Croatian courts, similarly to the courts of Member states, should be institutionally motivated and accept indirect effect of the directives even before membership. According to Croatian Constitution, courts are autonomous and independent in performing their judicial duty and they are only bound to judge on the basis of the Constitution and jurisprudence. The Constitution does not provide any guidelines about how to interpret the provisions that judges should follow. The only limitation is stated in Article 3 of the Croatian Constitution, which emphasises fundamental values such are freedom, equality of nationalities and sexes, social justice, the rights of man and citizen, the rights to ownership, preservation of nature and environment, rule of law and democratic multiparty system.
By becoming a member of the European Union, Croatian courts will
become a part of European legal system, and compliance of Croatian law
with acquis communautaire will become compulsory. However, there are no
legal obstacles in Croatia that would prevent Croatian courts to take
into consideration EU norms when interpreting the law, including the
practice of the European Court of Human Rights in Strasbourg.
On 1 January 2008 Asylum Act and Alien Act entered into force in Croatia. Legal experts believe that those acts substantially comply with the European Convention of Human Rights and Fundamental Freedoms, as well as with the EU directives.
Is it really so, we shall see from my further presentation. I will present those provisions that guarantee fair trial bearing in mind the main topic of this presentation, but I will also warn about the shortcomings that might be overcome by passing new laws, especially the Administrative Disputes Act and future amendments of the Asylum Act.
PROCEDURAL STANDARDS RELATED TO FAIR TRIAL
Right to Fair Trial is the fundamental principle of legislature and case-law of the European Union, and it stems from the European Convention on Human Rights and Fundamental Freedoms, (hereinafter referred to as : Convention). This principle is basically contained in the Article 6 of the Convention, and in spite of the fact that this article is not considered as applicable in asylum matters when the trial within the reasonable time is in question, I believe that all aspects of this article are applicable in asylum cases. Therefore we are talking about:
access to court,
independence, impartiality and fairness of trial,
the right of the party to fair and adversarial hearing,
the obligation of court and other authorities to give reasoned judgments,
trial within reasonable time.
By comparing the prerequisites for fair trial required by the Article 6 of the Convention and minimal standards that stem from the Council Directive 2005/85/EC of 1 December 2005. on minimum standards on procedures in Member States for granting and withdrawing refugee status (hereinafter referred to as Procedures Directive), on one side, and the analysis of the provisions in the Asylum Act on the other, we can conclude that a certain degree of compliance of Croatian law with the Convention and Procedures Directive has been achieved.
Right to public and adversarial hearing
Articles 12, 13 and 14 of the Procedures Directive have been implemented in the Asylum Act, so that in the procedure before the first instance administrative body which is the Ministry of the Interior, these provisions are respected during the personal interview of the asylum seeker. The interpreter is present (if necessary), at the first interview and the asylum seeker can be interviewed on multiple occasions. Asylum seeker can enter corrections in the court record from the interview if necessary.
Against the first-instance decision, the asylum seeker can appeal to
second-instance administrative body, which is, according to the Article
13 of the Asylum Act, the Asylum Commission (hereinafter referred to as
Commission). This Commission is an independent administrative body
functioning in accordance with the Constitution, laws and international
conventions which are part of the Croatian legal system. About its work,
once a year it files a report to the government of the Republic of
Croatia. The Commission is formed with a president and four members,
selected from administrative bodies, representatives of non-governmental
organizations which are involved in promoting and protecting the rights
of the refugees. One member is selected from the rank of university
In accordance with Asylum Act, the Commission, as the second instance body, generally does not hear from asylum seeker. However, if it is not possible for the Commission to make the decision based on facts established during first-instance procedure, such possibility s open (article 68, Paragraph 1 of the Asylum Act).
The corresponding provision exist in the current Croatian Administrative Disputes Act, nevertheless, it has to be mentioned that The Administrative Court of Croatia newer uses this possibility, but rather quashes the second-instant decision and return the case to the administrative body with the instruction how to correct irregularity in establishing facts.
On the other hand it should be stressed that the new Administrative Disputes Act is currently in preparation in Croatia. This law will substantially improve the current case-law, especially in terms of the right and responsibility to hold public and adversarial hearings and establishing facts in the procedure.
Access to court
Another important question is: does the current Asylum Act guarantee the right of the asylum seeker to access the court in accordance with Article 6 of the Convention, as well as with article 39, paragraph 1 of the Procedures Directive? In other words: does asylum seeker have a right to appeal to the court after the first-instance decision?
Regardless of the independence and impartiality of the aforementioned Commission, provided by the Article 18 of the Asylum Act, it cannot replace a fully independent and impartial functioning of the court, as provided in the Article 6 of the Convention, because the role of the Commission cannot be compared with the role of the court in general. Therefore, we have to conclude that the asylum seeker has no right to appeal to the court after the first-instance decision. However, the asylum seeker has the right to submit a lawsuit against the second-instance decision of the Commission by starting the administrative dispute before the Administrative Court, which decides in accordance with the Administrative Disputes Act.
According to the draft of the new Act on Administrative Disputes, four first-instance Administrative Courts should be formed on the territory of the Republic of Croatia and Supreme Administrative court, where the dissatisfied party can appeal after decision of first-instance court. In accordance with the new legislative, the aforementioned Commission should be replaced with a first-instance Administrative Court. Against the decision of the first-instance Administrative Court, the asylum seeker will be in position to appeal to the Supreme Administrative Court.
This will be a significant improvement, since the present Administrative Court is not the court with full jurisdiction, because it neither establishes facts nor holds public and adversarial hearings.
Free legal aid
One of the pillars of fair and just trial is the right of the party, under particular assumptions, to obtain free legal aid. In article 34 of the Asylum Act free legal aid for asylum seekers is provided, which contains: general information on the rights and obligations of the asylum seeker in the procedure, assistance in composing the appeal and legal representation before the Commission (Paragraph 1).
On 7 June 2008, the Free Legal Aid Act entered into force in Croatia. This Act defines the notion of legal aid in Article 2, where it states that legal aid facilitates access to court and other administrative bodies which decide on rights and obligations of Croatian citizens and aliens. Republic of Croatia covers all legal expenses, taking into consideration the economical status and circumstances under which a person would be unable to pay for legal expenses without jeopardizing his own existence or the existence of his family members. According to this Act, legal aid can be provided by the lawyer, legal association or university.
Stating Article 7 of this Act, the users of legal aid can be Croatian citizens, aliens with permanent residence, aliens with temporary residence, persons who have been granted asylum, aliens under subsidiary protection and aliens under temporary protection as well as asylum seekers if all of them cannot pay for legal assistance without jeopardizing their existence.
Having in mind the aforementioned provisions of both cited Acts, we can conclude that asylum seekers have the right to obtain free legal aid not only during the administrative proceeding, but also during the court proceeding, provided that they meet the necessary requirements. Consequentially, Croatian legislative has fulfilled the demands stated in article 15 of the Procedures Directive which prescribes that free legal aid can be obtained in procedure before the court or tribunal.
Trial within reasonable time
By stating the fundamental principles of fair trial, I must point out another fundamental principle of fair trial, and that is the right of the party to have trial within reasonable time. In article 57 of the Asylum Act it is provided that if the Ministry cannot adjudicate within 6 months from filing for the grant of asylum status, it will inform the asylum seeker about the period of time in which he can expect the decision. The time limits in accelerated procedures are also regulated in the way that the asylum seeker can appeal to the Commission within five days against the decision of the first-instance body. Second-instance decision must be delivered within eight days (article 56 of the Asylum Act). Time limits on procedures before the Administrative Court are neither regulated in the Asylum Act, nor in the Administrative Disputes Act.
According to the practice of the Administrative Court, cases of asylum seekers were solved within one year, counting from the date of submission of the claim for asylum to the Ministry of the Interior until delivering judgment by the Court.
Article 6 of the Convention binds the courts to give reasons for their decisions. Especially lower-instance courts and decision-making bodies must provide adequate reasons, in order to provide the opportunity to appeal. Here I have to notice that substantial improvements have been made in regard to the decisions of the Ministry of the Interior. Not only that their decisions are well reasoned, which was not the case before, but they also call upon the judgments of the European Court of Human Rights and the provisions of international conventions.
LIMITATION OF THE FREDOM OF MOVEMENT FOR ALIENS AND ASYLUM SEEKERS (detention)
Although, limitation of the freedom of movement is not the part of the art. 6. but the art. 5. of the Convention, speaking of Fair Trial, I would especially like to refer to the provisions concerning limitation of the freedom of movement for aliens and asylum seekers.
The Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (hereinafter referred to as: Qualification Directive) has no provisions concerning placing the asylum seeker in detention centre, and the Procedures Directive has only a general provision in article 18. Therefore, it is difficult to compare have the provisions of Croatian acts been harmonised with the aforementioned Directives.
In accordance with the Article 30 of the Asylum Act, the right of asylum seeker to reside in the Republic of Croatia until the completion of the administrative procedure is guaranteed. This means that this provision is in compliance with the Article 7 of the Procedures Directive.
In article 74 of the Asylum Act, it is provided that the asylum seeker can, under certain assumptions be limited in his freedom of movement. These limitations can consist of limitations of movement outside the Reception Centre for Asylum Seekers, limitation of movement outside determined area or leaving a certain address. Asylum seeker who endangers the life and/or property of other persons, or asylum seeker who does not follow the law, will be limited in his freedom of movement by placing in Detention Centre for Aliens.
Since the current Asylum Act and Alien Act entered into force, Administrative Court of the Republic of Croatia has resolved ten cases of the asylum seekers and twelve cases of aliens who, due to their illegal presence in Croatia, were placed in the Detention Centre. In all these cases, the lawsuits were rejected because the Court concluded that all of these ten claims were obviously ill-founded, according to the Article 61 of the Asylum Act.
Despite the small number of solved cases in this field, I can say that, generally speaking, the proceedings before the Ministry of the Interior and appeals before the Commission are in compliance with procedural provisions of the Asylum Act and Alien Act which are responding to demands of the both Qualification and Procedures Directives. Of course, there is room for improvement. For example, the asylum seeker should have right to adversarial hearing in second-instance procedure i.e. during appeal procedure. Also, it is an important question whether the legal situation in which a lawsuit to the Administrative Court does not have suspensive effect can still remain. We can hope that the new Administrative Disputes Act and the Amendments to the Asylum Act which are in process of drafting will solve these problems as well.