With the rise of nationalism, racisms and xenophobia, transparency of state actors is becoming increasingly important
The largest refugee crisis since World War II spilled over Europe’s shores almost two years ago when those fleeing war and persecution started travelling across the Mediterranean Sea and overland with the aim of reaching the EU. What became popularly known as the Balkan Route has since been closed, leaving millions stranded in Greece, Turkey and neighboring countries. Several hundred are currently residing in Croatian Reception Centers for Asylum Seekers in Zagreb and Kutina, awaiting completion of their asylum procedures.
In the last few months, and especially throughout April 2017, NGOs Are You Syrious? (AYS) and the Centre for Peace Studies (CMS) noted a sudden increase in the number of denied asylum applications for asylum-seekers from Syria and Iraq, as well as denials of citizenship status or denials of permanent and temporary stay for foreigners residing in Croatia. In all of those cases, the Ministry of the Interior invoked Article 41 of the Security Vetting Act and denied applications on grounds of existence of impediments based on the opinion of the Croatian Security and Intelligence Agency (SOA).
The problem lies in Article 41, not only for asylum seekers but for all foreign nationals. According to the Article, when security vetting is performed for foreign nationals who will reside or reside in Croatia or for those who are to gain Croatian citizenship, the Security and intelligence Agency submits only their opinion on existence or non-existence of security impediments. In other words, if you are a foreign national who wishes to live in Croatia or become its citizen, the authorities may carry out security vetting and effectively pronounce you a threat to national security without providing any explanation or evidence for such opinion. Based on that, they can reject or terminate your residence or expel you.
While there is certainly a need to carry out security vetting of certain foreign nationals for the purposes of national security, the report issued by AYS and CMS questions arbitrary and over-extended interpretation of security impediments, the lack of independent control over the definition of security impediments, as well as the difficult legal position of asylum-seekers whose application was denied on grounds of Article 41.
In asylum seekers’ cases as well as for all other vetted foreign nationals, the Security and Intelligence Agency submits to the Ministry of the Interior an opinion that there are security impediments to approving applications for asylum, citizenship or residence. Based on that opinion, the Ministry makes a decision on the foreigner’s status. The reasons behind those impediments are not provided to foreign nationals or their legal representatives. Following a negative opinion, the Ministry denies the application and instructs the person to submit an administrative complaint to an administrative court. In the subsequent proceedings, the applicants and their attorneys are unable to argue their case because they do not know what they are arguing against.
Effectively, if you are a foreign national seeking to regulate your status in Croatia, you can be denied asylum, citizenship or residence based on an opinion, without ever knowing the reason behind it or without being able to dispute such an opinion in court and exercise your right to a fair trial. Such non-transparent conduct opens up space for unlawfulness and arbitrariness resulting in human rights violations of refugees and foreigners in Croatia.
Another indication of potential violations is the sudden and significant rise in the number of denied applications on these grounds. Earlier this year, the aforementioned NGOs and Human Rights Watch have already reported on unlawful and violent behavior of Croatian police against refugees, with police forcefully pushing back refugees to Serbia, physically abusing them, seizing their belongings and preventing them from applying for asylum. In this report on unlawful and arbitrary practice of SOA, the NGOs described cases of numerous foreigners who fulfilled all formal requirements for asylum or citizenship according to the Ministry of the Interior and whose applications were refused solely on grounds of security impediments.
Three of them are minors and all of them are citizens of war-torn Iraq and Syria. In all of the decisions, the Ministry of the Interior decided there are sufficient grounds for granting asylum or subsidiary protection but the applications were automatically rejected following a negative opinion of the security agency. In two cases, foreigners already had regulated residence in Croatia (temporary or permanent residence) and their requests for further regulation (citizenship or some other form of residence) were rejected on grounds of Article 41. These are people who have been living and working in Croatia for a number of years, who have started families and have children. One of the denied persons is a long-time collaborator of the Ministry of the Interior. Paradoxically, even though the intelligence agency gave a negative opinion, the Ministry continues to use the person’s services.
This practice is in violation of several laws, as well a decision of the High Administrative Court from 2014 according to which the lack of reasoning behind the opinion on existence of security impediments prevents the Ministry of the Interior from evaluating whether the impediments are relevant for the application or not and, therefore, forces it to adopt unlawful decisions because it cannot fulfill the obligation of providing reasoning for the decision. The High Administrative Court denounced such practice as “completely unacceptable and contrary to the fundamental principles of the legal order of the Republic of Croatia.”
The NGOs are calling on domestic, international and EU institutions to stop this practice, launch an investigation into potentially unlawful and arbitrary conduct of SOA, cease unlawful conduct and create mechanisms of oversight over security agencies.
Without calling into question the need for secrecy when national security is at stake, the question is where do we draw the line? In the last decade, we were witnesses to several stories on national security agencies and their authorities or lack thereof. While there is an increased need for security in the modern word, security agencies should not be allowed to act outside the boundaries of law and without oversight. With the rise of nationalism, racisms and xenophobia, transparency of state actors is becoming increasingly important.
NOTE: The article will soon be amended with a link to the original report created by Are You Syrious? and the Centre for Peace Studies.
