The applicants, a family with minor children from Afghanistan, were rejected international protection in Croatia first when they attempted to enter from Serbia and later, when they re-entered, the application was rejected without analysis on the merits, by application of the safe third country concept as the applicants came from Serbia (decision of 28 March 2018, applying Articles 45 and 43 (1) (3) International and Temporary Protection Act). In the decision of 28 March 2018 the Ministry of the Interior reasoned that Serbia ratified and applies key international human rights instruments, that it is a signatory of the ECHR, of the Geneva Convention and that its Asylum Act enshrines the non-refoulement principle. The Ministry also noted that UNHCR reports signal that international protection is granted in Serbia for Afghan nationals.

The applicants appealed and the administrative court rejected the complaint based on the safe third country concept applied for Serbia. The Administrative Court considered that the legal framework in Serbia guarantees protection of fundamental human rights and freedoms and an efficient and fair procedure for international protection, and that, in Serbia, the applicants will be treated in accordance with the prohibition of chain refoulement. The administrative court noted that a UNHCR report of 2017 mentioned improved reception conditions in Serbia for asylum applicants and that the latter cooperated with EASO to develop a National Plan for the establishment of an asylum system in line with European standards and the EU acquis. Moreover, the court found that the applicants stayed in Serbia for more than one year and applied for international protection there and have not been exposed to any treatment contrary to Articles 3 and 8 ECHR. The court relied also on the case of A.S. v. Switzerland (30 June 2015, no. 39350/13).

The applicants further unsuccessfully contested the decision of the administrative court before the High Administrative Court. The second instance court added that Serbia was a candidate country to the EU membership, which brought its national legislation in line with EU law and is also listed as safe third country in other EU countries, such as Austria, Belgium, Bulgaria, Denmark, Czech Republic, France, Germany, Luxembourg, Malta, Slovakia.

The applicants submitted a constitutional claim under allegations of humiliating and inhuman treatment during the application for international protection. First, they claimed inappropriate treatment by the police when being interviewed upon receipt of the application for international protection. Second, they complained that national authorities wrongly applied the safe third country concept with respect to Serbia, because there were procedural shortcomings (absence of lawyer, misinterpretation during procedure by the interpreter and insufficient examination of the asylum procedure in Serbia with regard to applicants from Afghanistan. Moreover, the applicants invoked a violation of their right to an effective remedy due to their placement in a transit reception centre, without access to a lawyer, fact that lead to a rejection of their application. In addition, applicants in the joint case, invoked that it was not sufficient to examine only the legal framework in Serbia when determining if it is a safe third country, but consideration should have been given also to how these legal provisions are actually applied in practice.

The Constitutional Court held that, on the application of the ‘safe third country’, and where the authorities decide to remove asylum seekers to a third country, the ECtHR found that this does not exempt a Member State from the responsibility and the duty not to deport them (remote) if there are reasonable grounds for believing that such an act would expose them to treatment contrary to art. 3 of the ECHR.

The Constitutional Court reiterated the ECtHR case law, namely Ilias and Ahmed v. Hungary, no.  47287/15, 21 November 2019, where the ECtHR found that in all cases of the removal of an asylum seeker from a Contracting State to a third intermediate country without examining the merits of the asylum application, whether or not the receiving third country is an EU Member State or whether the third country is a party to the Convention, it is for the State of removal to examine thoroughly whether there is a real risk that the asylum seeker in the receiving third country would be deprived of access, to an adequate asylum procedure protecting him or her from expulsion or return (refoulement).If it is established that existing guarantees are not sufficient in that regard, then the asylum seekers are not removed to a third country. Similarly, the Constitutional Court mentioned the ECtHR findings in the case M.K. and Others v. Poland, no. 40503/17, 23 July 2020. The Constitutional Court made a thorough assessment of the nature and content of the duty to ensure that the third country is safe, derived from the principles settled in the jurisprudence of the ECtHR, for example in MSS v Belgium and Greece.

The Constitutional Court took into account reports ECRE report on Serbia, with focus on the reception conditions, and the asylum procedure, as well as the COVID-19 outbreak and the way Serbia deals in practice with asylum requests. The Constitutional Court held that, prior to sending back applicants to Serbia, an individual assessment has to be carried out in order to establish what status the applicant would be given in Serbia and the safeguards related to procedures (access to legal assistance and to interpretation) and not to be subject of an expulsion decision.

In the present case, the Constitutional Court looked into the claim under art. 3 ECHR and whether the applicants, if removed from Croatia to Serbia, would have access in the later to appropriate asylum procedure, and protection against refoulement and held that the administrative proceedings and the judicial administrative examinations did not established with sufficient certainty that Serbia is a safe European third country and that Croatia failed to fulfil its obligations under art. 3 ECHR concerning the applicants’ return to Serbia. The case was referred back to the lower administrative court for re-examination.