The applicant, Algerian national applied for international protection in the Netherlands but on 30 March 2021, the State Secretary for Justice and Security decided not to examine the application because Croatia is responsible for examining it under the Dublin Regulation. The applicant contested the decision and alleged that a Dublin transfer to Croatia would result in a breach of Article 3 ECHR. The State Secretary has however relied on the principle of mutual trust between Member States when deciding on the transfer.

The applicant claimed before the Court of the Hague and further before the Council of State that the State Secretary did not address the risk for a third country national to be redirected from Croatia to a third country due to pushbacks and without having been able to make an application for international protection and go through an asylum procedure.

The Court of the Hague considered that third country nationals in Croatia do not face a real and serious risk of being treated in breach of the EU Charter, Article 4. Although it is not disputed Croatian practice of pushbacks at the border, the court relied on the AIDA report on Croatia (2020 Update) of May 2021 and considered where it was mentioned that Dublin applicants transferred to Croatia do not experience any problems in accessing the asylum procedure and reception conditions. According to the court of the Hague, the State Secretary has therefore rightly taken the position that he can still rely on the inter-state principle of the protection of legitimate expectations with regard to Dublin claimants for Croatia.

In the subsequent appeal, the Council of State addressed the question of whether the State Secretary has properly justified that he is right to apply the Dublin Regulation to Croatia on the basis of the principle of the inter-State protection of legitimate expectations and that the foreign national does not run a real risk of ending up in a situation contrary to Article 4 of the EU Charter and Article 3 of the ECHR when returning to Croatia, including not being subject to push back to a third country.

The Council of State stated that when a third country national argues, but reference to objective information, that the State Secretary can no longer rely on the principle of mutual trust, it is for the State Secretary to demonstrate in a resonated manner why it reaches a different conclusion based on the same objective information and it has also to justify why the systemic errors in the asylum procedure and/or reception system in the transfer State are not fundamental or those deficiencies do not reach the threshold of severity as the CJEU ruled in Abubacarr Jawo v Bundesrepublik Deutschland.

When the State Secretary can not properly justify the applicability of the principle of inter-state mutual trust and legitimate expectations, he is obliged to carry out a further investigation in the requested Member State (see the judgment of the ECtHR of 21 January 2011,  M.S.S. v Belgium and Greece). According to the Council of State, a further investigation in the requested Member State does not affect the principle of mutual trust but will confirm that the principle can still be relied on (CJEU, C.K. and Others v Republic of Slovenia (Republika Slovenija)).

The Council of State further concluded that the pushbacks in Croatia constitute a fundamental systemic error in that country's asylum procedure, which reaches the particularly high threshold of gravity. As for the consequences on Dublin procedure, the Council of State ruled that although the pushbacks at the external borders do not in themselves mean that Dublin applicants cannot be transferred to Croatia, there are concrete indications that the State Secretary can no longer assume that Croatia will comply with its international obligations with regard to the third country national. 

The Council of State concluded that the State Secretary should have carried out further investigation into the risk for transferred Dublin applicants to be deported by Croatia without treatment or during the examination of their asylum application. Considering the nature, extent and duration of the fundamental systemic error at issue and that it reaches the particularly high threshold of gravity, the absence of information on the situation of Dublin applicants after transfer to Croatia cannot be at the risk of the foreign national. Consequently, the State Secretary decision was annulled.