The case concerned a Dublin transfer to Croatia and the Regional Administrative Court in Stuttgart allowed the appeal considering that the personal interest of the applicant outweighs the public interest of implementing the Dublin transfer and concluded that the transfer must be annulled due to unlawfulness. In fact, the court noted that there are systemic deficiencies in Croatia in the asylum resulting also from the fact that applicants who leave Croatia and have withdrawn their application or they were rejected, they are treated as subsequent applicants, contrary to the Article 18 (2) of the Dublin III Regulation. Applicants who have withdrawn an application before a decision is taken in the first instance determination must be entitled to request to have a decision on their application or to be allowed to submit a new application without being treated as subsequent application, in order to receive protection against refoulement.
According to AIDA report on Croatia for 2021, p. 47, a violation of Article 18 (2) of the Dublin III Regulation and the processing of an application upon transfer as subsequent application would result into the applicant not having the right to be heard and not to have other procedurals safeguards ensured. Also, since the application is treated as subsequent, the Asylum Department will have to decide within 15 days on the admissibility and the applicant would have no protection against refoulement.
In addition, the court has also noted that the indications of systemic deficiencies in the asylum procedure result also from allegations of human rights violations due to push backs, namely alleged violent push backs at the border with Serbia or Bosnia Herzegovina, including chain refoulement from other Dublin countries. There is a risk that that Dublin applicants transferred to Croatia risk being rejected and returned without an examination in substance of their asylum application.
The court noted that the Croatian authorities informed that on 12 May 2022 the applicant’s asylum procedure was discontinued and the decision is final, thus there is the risk that the application will be considered as subsequent upon transfer and the applicant will be denied a substantive examination of the grounds for asylum. The court noted also that other Member States have suspended Dublin transfers to Croatia due to the risk of a violation of Article 3 ECHR and referred also to CPT reports where it was indicated that courts from Italy, Slovenia and Switzerland have ruled on suspension of transfers to Croatia for similar reasons.
The CPT report on the situation in Croatia indicated various complaints from applicants who have suffered ill-treatment by border police officers, including usage of force to make people cross the back the border. The allegations against police officers were corroborated by an anonymous complaint against Croatian border guards, as mentioned in a report of the Border Violence Monitoring.
The court concluded that it remained unclear whether Dublin returnees would face these serious human rights violations and annulled the contested decision.
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