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Equality of arms in procedures concerning asylum seekers and foreigners in Croatia – importance of explanation of a decision

Introduction


It is important for every party in any procedure governed by law to be able to ascertain why a certain decision was made. This is important in order to know whether the decision is “correct” and/or lawful. When talking about procedures governing asylum seekers and foreigners in Croatia, it is important to note that those are administrative procedures which are governed by the General Administrative Procedure Act (GAPA)[1]. GAPA prescribes that every decision (rješenje) made in administrative procedure must contain an explanation (Article 98, para. 5). The explanation is made of a short summary of the request of the party, ascertained facts of the case, reasons that were crucial in determining the evidence, reasons why any of the party’s requests were not accepted, reasons for every procedural decision throughout the whole procedure and the substantive law applied to the administrative matter. The first purpose of an explanation of every administrative decision is to elaborate the disposition of the decision (which contains an adjudication of the administrative matter). The second purpose of explaining every administrative decision is to discourage the party from using legal remedies. If the explanation is well-written and comprehensive, the party is less likely to challenge it. The Croatian administrative practice with regard to the obligation to explain an administrative decision can be divided into two phases. The first originated from 1956 to 1993 when certain deviations regarding the obligation to explain a decision existed. The second was marked by the decision of the Constitutional Court of the Republic of Croatia (Constitutional Court) U-I206/1992 from 8 December 1993[2] and subsequent decision U-I-248/1994 from 13 November 1996[3], when the Court quashed provisions which allowed for such deviations. After the aforementioned decisions, it was clear that all administrative decisions must contain a valid explanation of the disposition of the decision. However, in certain administrative procedures parties were continuously denied reasons for deciding as was decided in the disposition deciding on their rights, obligations and legal interests. This is usually linked with procedures in which reports from the Security and Intelligence Agency (SIA) are used as evidence for determining facts. This problem denies such parties the equality of arms and, consequently, access to court as they are unable to effectively protect their rights. The Constitutional Court tried to resolve this problem with its decision U-III-2086/2016 on 13 March 2018[4]. This decision was a consequence of the judgement of the ECtHR T. G. v. Croatia[5] in which the Court stated that, in cases of a limited extent of information available to the applicant in the administrative procedure, there is a need for particular care and attention on the part of the Administrative Court to ensure that its decision-making process as far as possible, was in compliance with the requirements of adversarial proceedings and equality of arms. This means that an effective opportunity must exist for the applicant to challenge the factual basis of the decision, or there is no fair trial.

However, in its consequent cited decision, the Constitutional Court only gave certain principles that are to be applied in administrative court practice. Therefore, the implementation was left to the administrative courts. Balancing the need to enable the parties to defend their rights and the need to protect the secrecy of certain parts of the file is extremely difficult but necessary in order for the procedure to be lawful. Second, without a “proper” explanation, there is, in reality, no possibility to achieve court protection as the plaintiff needs to know what to “attack” within his lawsuit. Therefore, the obligation to explain a decision is strongly linked with the right to a fair trial guaranteed by Article 6 of the European Convention and Article 29 of the Croatian Constitution.


The development of the obligation to explain every administrative decision - discretionary powers and administrative procedure


The obligation to explain every administrative decision was prescribed in all laws governing administrative procedure in Croatian history – the “old” Yugoslavia GAPA from 1931, the federal GAPA from 1956, which was incorporated into the Croatian legal setup in 1991 (with amendments and in text from 1986) and in today’s GAPA from 2009. However, the 1956 GAPA contained a provision enabling public bodies not to explain their decisions. This was prescribed by Article 209, paras 3 and 4, which reads as follows:

(3) When the competent authority is authorized by law or other regulation based on law to resolve the matter using discretionary powers, it is obliged to state that regulation in the explanation, in addition to the information from paragraph (2) of this article, and explain the reasons that guided it when making the decision. These reasons do not have to be stated when this is expressly provided for in the public interest by law or regulation.

(4) If the law or regulation specifically stipulates that in a decision made using discretionary powers, it is not necessary to state the reasons by which the authority was guided when making the decision, the information from paragraph (2) of this article shall be stated in the explanation of the decision, the regulation by which the authority is authorized to solve the matter using discretionary powers and the regulation by which he is authorized not to have to state the reasons he was guided by when making the decision."

Therefore, our legal setup (the 1956 GAPA, with amendments, was in force in Croatia until 2010) enabled public bodies not to explain the reasons because of which it resolved an administrative matter, when deciding using discretionary powers.[6] This authority of the public bodies was even more pronounced in the period from 1956 to 1977, when it was subsided by the 1977 amendments of the 1956 GAPA.

However, the necessity of proper explanation of every administrative decision was strongly emphasized in the aforementioned decision U-I206/1992 from 1993, by which the Constitutional Court quashed Article 26 paragraph 3 of the Croatian Nationality Act, which read as follows:

Reasons for the rejection of the application do not have to be stated in the explanation of the decision on the rejection of the application for acquiring nationality.”

However, in contrast to the 1956 GAPA, this norm allowed for a significantly wider non-reasoning of the decision by which the administrative matter was resolved. Namely, the provisions of Article 26 of that law prescribed the powers of the Ministry of Interior:

  1. to reject the party's request if the prerequisites are not met unless otherwise regulated by this law (paragraph 1);

  2. that it can reject the party's request even when the prerequisites are met if he assesses that there are reasons of interest to the Republic of Croatia, due to which the request for acquisition or termination of nationality should be rejected (paragraph 2) and

  3. that in the explanation of the decision on the rejection of the application for acquiring nationality, it does not have to state the reasons for the rejection of the application (paragraph 3).[7]


In accordance with the above, the Ministry of the Interior was never obliged to explain the reasons for rejecting the request to acquire Croatian nationality, regardless of whether the cases referred to in paragraph 1 (when the prerequisites prescribed by law are not met) or paragraph 2 (although the prerequisites are met, but there are reasons of interest to the Republic of Croatia, for which the request should be rejected).

The Constitutional Court, assessing the conformity with the Constitution of the Republic of Croatia of the aforementioned provisions, set key rules related to the obligation to explain the decision and established the importance of the explanation for a) parties in administrative proceedings, b) society, but also c) for the state.[8]

The Court asked a very simple but logical question – “But how can a person exercise that right and how can the court perform its duty (control of legality) when the MUP is not obliged to state (and explain) which of the many assumptions provided by law that person did not fulfil." - and immediately gave and, again logical answer: "A decision without an explanation, a decision that contains neither established facts, nor legal regulations and reasons why the party's request was not respected, can hardly be a valid basis for an effective legal remedy."

Soon after this decision, the Constitutional Court quashed the aforementioned provisions of the 1956 GAPA (U-I-248/1994 from 1996), therefore establishing an absolute obligation for every public body to explain properly its decision by which an administrative matter is resolved. Namely, the need to explain why a decision was made is a necessary prerequisite for protecting the parties’ rights.[9] Đerđa stated that the explanation is used for properly interpreting the dispositive, for validating the use of the principle of legality in the bringing of a decision and for enabling oversight regarding the legality and regularity of a decision. Furthermore, reasoning provides an important and authentic means of correctly interpreting a dispositive of an administrative decision.[10] 


Administrative procedures linked with asylum seekers and migrants and use of classified data


Although the obligation to explain every administrative decision exists, there is also a problem with regard to administrative procedures in which classified data is used. This is especially so in all procedures in which national security is an issue, and this is so in nationality procedures, asylum procedures and procedures regarding migrants (foreigners). In all these procedures, the public body conducting them – the Ministry of Interior is obliged to determine whether an individual poses a threat to national security. This is done with data obtained by SIA, which gives an opinion on whether an individual threatens national security. This opinion (and the means that brought it to pass) represents classified data. This represents a problem as SIA’s opinion is very often the reason why requests of parties are denied (as they are deemed a threat to national security). The Ministry of Interior is very reluctant to grant a request if the opinion of the SIA is negative, although practice shows that such opinions are sometimes not explained at all.[11] The obvious problem is that if the decision is based on a prior opinion of SIA, which is not explained (that the party is a security risk), how can the party prove the opposite? This problem lingered throughout administrative and administrative court practice until the Constitutional Court brought its decision U-III-2086/2016, in which it tried to resolve this problem. Namely, the fact that the party is not privy to the data in these procedures means that the party does not know why he is deemed a security risk and, therefore, has a much harder way to challenge the decision, which was brought based on the opinion of SIA. However, it is obvious that SIA cannot reveal everything in its path of establishing whether a person is a security risk. Therefore, there has to be a compromise between the rights of the party to receive an explained decision and the need to protect classified data. That is why the Constitutional Court said that:

The right to a fair trial, i.e. the principle of adversarial justice and equality of arms, requires that the applicant has a reasonable opportunity to present arguments in favour of his claim and to comment on all the evidence presented to the court in a procedure in which he will not be in a significantly less favourable position compared to the opposing party. The right to inspect all evidence is not absolute, and it may be limited due to some other conflicting interest, in this case, the interest of national security and the protection of the freedom and rights of other people. However, this limitation cannot be so broad as to prevent the applicant from effectively contesting the legality of the decision that he refutes in the administrative dispute. This restriction should be reduced to the smallest possible measure that will simultaneously protect the public interest but also provide the applicant with the opportunity to convince the court of the justification of his request."

This decision was expected within Croatia’s professional community because it was clear that the situation in which a party is not, in any way, privy to the reasons for the negative decision of a public body is not viable.[12] Namely, Article 41 of the Security Clearance Act prescribes that in security clearance procedures for foreigners who reside or will reside in the Republic of Croatia (also for all applicants for Croatian nationality), SIA will deliver only the opinion whether security obstacle exists or not. This also means that the public body that decides on the administrative matter does not know the information that makes the foundation for the conclusion that a security obstacle exists or does not exist.[13] In reality, this means that the SIA decides on the merit of the administrative matter, not the competent public body. Such a situation cannot be allowed to continue as it is not legally acceptable or logical that a party is privy to the reasons for deciding an administrative matter only in the phase of an administrative dispute (as the court is privy to all data from the procedure).[14] Therefore, the Constitutional Court obliged the administrative courts to take appropriate measures to assure that the administrative procedures in which classified data is used are conducted in a manner which ensures it conforms with the requirements of the adversarial principle and procedural equality of the parties and more concretely justify (only) those restrictions that are really necessary to protect the interests for which they were established.[15] The prior usual practice of the courts – just to examine the data used for security clearance procedure – will not be acceptable after the Court’s decision in 2018. The courts are to decide which evidence and in what manner it will be presented to the party that instigated the administrative dispute.[16]


New administrative court practice


Although the Constitutional Court emphasized the need to enable the party in administrative procedures, which include security clearance procedures and access to the evidence which was used in determining their security status, it also said that the courts have an obligation to prevent possible damage which could arise from providing insight into the classified data. So, the Court said: give the data, but contain the possible damage. It did not give any directions as to in what manner the courts (and public bodies – i.e. the Ministry of Interior) should achieve this goal.[17] This is why the judgement of the Administrative Court in Rijeka 2 Usl-1046/17-8 of April 23, 2018 is extremely important for the issue of the obligation to explain the decision and, consequently, for the protection of the rights of parties in administrative proceedings and administrative disputes. The aforementioned judgment was passed very soon after the adoption of the cited decision of the Constitutional Court (from March 2018), and in it the Administrative Court in Rijeka tried (and succeeded) to set the “rules of the game” when explaining decisions containing data classified with a certain degree of secrecy.[18] From this judgement, the following can be concluded: when deciding on these types of cases, it is necessary to state sufficient reasons for (in whole or in part) limiting access to the documentation on which the court's decision is based. It should be clear what type of damage can be caused by the explanation regarding the data, the content of which is known to the party. The party must have a reasonable opportunity to present arguments in favour of his request and to respond to all the evidence presented to the court in a procedure in which he will not be in a significantly less favourable position compared to the opposing party. The right to access all the evidence is not absolute. It may be limited due to some other conflicting interest, for example, the interest of national security and the protection of the freedom and rights of others, but this limitation cannot be so broad as to prevent the applicant from effectively and effectively contesting the legality of the decision he disputes in an administrative dispute.[19]

In addition, the conclusion of the Administrative Court in Rijeka that “the obligations of the administrative court, pointed out by the Constitutional Court of the Republic of Croatia, are applicable - mutatis mutandis - to public law bodies that resolve the respective types of administrative matters” should be emphasized and supported. Therefore, public law bodies that deal with administrative procedures that include “handling” classified data must, in accordance with the decision of the Constitutional Court, provide the parties with the means to effectively participate in such procedures, with the possibility of partially or completely restricting access to the documentation on which the decision is based, but the party must have a reasonable possibility to present arguments in favour of his request.[20]

4.1. Subsequent changes in administrative practice

It is stated in the literature that public bodies have, in some manner, aligned their practice with the aforementioned principles and findings of the Constitutional Court and the administrative courts.[21] This is also visible from the judgement of the Administrative Court in Rijeka 2 Usl-950-2019-12 from 3 December 2019 as the court states that the defendant (Office of the National Security Council) declassified elements of the data and presented them to the plaintiff, and certain elements of the classified data were made available to him through citing the applied norms in his case. The Government stated, in its response to the Constitutional Court, that SIA, in agreement with the Ministry of Interior, began to adapt its internal procedures related to the status issues of foreigners. In this sense, instead of the previous non-reasoning of negative opinions (those that result in the rejection of the party's request or the foreigner's status ends or the foreigner is expelled), the SIA has started to implement the so-called unclassified summary so that the party is aware of the minimum facts and legal basis on which such an opinion is based, while at the same time, national security is not compromised by the disclosure of all classified information. However, the Government also emphasised that sometimes it is not possible to provide even the so-called unclassified summary because, for example, the case is of preparation for possible terrorism, and in such cases, the disclosure of this very fact (that a person is under the surveillance of the security-intelligence service due to terrorism) would cause irreparable damage to national security and the protection of life and property of the citizens of the Republic of Croatia.


Further inputs by the Constitutional Court and their impact on the rights of foreigners


The Constitutional Court brought its newest decision with regard to classified data and its use in various procedures in June 2020 (U-I-1007/2012 and others)[22]. The Court ruled on the conformity with the Constitution of Security Clearance Act and Foreigners Act. These norms allow for bringing an act without explanation of reasons for the decision when the stay of the foreigner is declined or suspended, or a foreigner is expelled if the reason for this is national security. The basis for such a decision is the opinion of SIA, which is not explained according to Article 41 of the Security Clearance Act.

Although the Court found that the contested norms conform with the Constitution, it expanded its new doctrine with regard to using classified data and/or results of security clearance procedures.[23] The Court reiterated that sources and methods of obtaining data must be protected, but the parties must also be able to contest the decisions in which such data is used. As Rajko emphasises, there are two principal features of the Court’s approach: first, there has to be a legally based and adequate balancing between the requirement to ensure the party's fundamental rights and the requirement to protect the public interest. Second, the concretized resolution of administrative matters has to exist, taking into account the particularities of the specific case, which also includes the concretized reasoning behind (negative) decisions.[24] The Constitutional Court emphasizes that, in order to protect the right to effective judicial protection, the Court of Justice of the EU took a strict position that if the competent administrative body cannot act on the court's request (because of the use of classified data), then it is up to the court to base its decision only on those elements that have been communicated to it. If these elements do not make it possible to establish the validity of a reason, the court will not take it into account as the basis for a decision on the merits of the dispute it is deciding on. If, however, the competent administrative body provides relevant data or evidence, the court must check the accuracy of the content of the stated facts in relation to that data or evidence and determine their probative value. Furthermore, suppose it turns out that the reasons given by the competent administrative body oppose the communication of data or evidence that was presented before the court to the concerned person. In that case, it is necessary to appropriately balance the requirements related to the right to effective judicial protection, especially respect for the principle of trial, and those arising from the security of the EU or its Member States or from conducting their international relations. The Constitutional Court's decision also contains dissenting opinions of two judges who feel that the contested norms do not conform with the Constitution. Namely, the Constitutional Court sets the system in a manner that demands that the administrative bodies and the administrative courts be responsible for protecting the rights of the party ex offo. This is, of course, true, but the judges challenge this notion in their dissenting opinion, stating that it is an illusion to expect that the bodies and/or especially courts will be able and/or willing to be, on the one hand, the representative of the party of sorts, and on the other hand, obliged to protect the source of the data.


Conclusion

It is obvious that every decision regarding the rights and obligations (and legal interests) of parties in administrative procedures must be explained. This rule was set by the Constitutional Court in the early 1990s and is considered to be the safeguard for the right to a fair trial and access to court, which is protected by the Constitution (Article 29) and the Convention (Article 6). However, the obligation to explain the reasons behind the decision can be in conflict with the need to protect classified data. This is a problem which is often detected in administrative procedures concerning asylum seekers and foreigners (migrants) when determining their rights and obligations, as SIA usually performs security clearance procedures in such procedures. The Ministry of Interior issues its decision, which is usually (and in some cases obligatorily) determined by SIA’s opinion. Such opinions are often not explained at all, which obviously creates a detrimental legal situation for the party. This is why the Constitutional Court (prompted by the ECtHR’s judgment, T.G. v. Croatia) ruled that such data must be given, but in a manner that would prevent damage to the public interest. However, it did not give specific instructions on how to achieve this goal, and it left that to the administrative courts. The courts adapted their practice as was shown. The courts set a rule that the right to access all the evidence is not absolute and may be limited due to some other conflicting interest, for example, the interest of national security and the protection of the freedom and rights of others. However, this limitation cannot be so broad as to prevent the applicant from effectively and effectively contesting the legality of the decision he disputes. This was, as can be seen from available data, accepted also in the administrative practice of the Ministry of Interior. The Constitutional Court expanded its doctrine further in 2020, relying on the case law of the Court of Justice of the EU. It stated that it is important that the administrative bodies act according to the set court practice. However, there is still the possibility for administrative bodies to decide on administrative matters without being obliged to state the reasoning for their decisions if such a decision was brought for reasons of national security. In such cases, it is the duty of the administrative bodies and the courts to protect the rights of the party, which can be done by providing an unclassified summary for the party. However, if the administrative body does not comply with the court’s request, the court must act as if the data does not exist in order to resolve the matter.


Reference

[1] OG nos. 47/09, 110/21.

[2] OG no. 113/96.

[3] OG no. 103/96.

[4] Available at https://sljeme.usud.hr/usud/praksaw.nsf/94b579567876f9fcc1256965002d1bf4/c12570d30061ce54c12582510039f562/$FILE/U-III-2086-2016.pdf  accessed on 1 February 2024.

[5] From 11 July 2017, application no. 39701/14. T.G. was a member of a hunting association and spent his vacations hunting in Croatia. After having held a firearms license for hunting purposes in Croatia for ten years, he applied to renew it in 2011. The police, having conducted a background check which included reports that T.G. regularly abused alcohol, issued a report of their findings and refused his application. He challenged the decision before the Ministry of the Interior, which ordered the police to produce a new assessment of the background check. The second report provided further detail of the alleged alcohol abuse and confirmed these details with T.G.’s neighbours in Croatia, though their identities were classified. The Ministry of the Interior dismissed the complaint and T.G. challenged their decision before the administrative courts, which then upheld the refusal based on information contained in the confidential file. T.G. complained to the Constitutional Court that he had been denied access to the evidence containing allegations against him and that it had left him without opportunity to challenge them. The Constitutional Court dismissed the complaint as unfounded, holding that the police reports on his background check contained sufficient details regarding the refusal.

[6] Staničić, 2019, p. 19.

[7] Staničić, 2019, p. 19.

[8] Staničić, 2019, p. 19.

[9] Đerđa, 2010, p. 215.

[10] Đerđa, 2010, p. 216. See, also, Borković, 2002, p. 455.

[11] See the ruling of the High Administrative Court of the Republic of Croatia Usž-1828/17-2 from 20 July 2017  (https://sudskapraksa.csp.vsrh.hr/decisionPdf?id=090216ba807a68f5 accessed on 1 February 2024).

[12] Rajko, 2020a.

[13] Rajko, 2020a.

[14] Rajko, 2020.

[15] Peček, 2018.

[16] Peček 2018.

[17] Staničić, 2019, p. 20.

[18] Staničić, 2019, p. 20.

[19] Staničić, 2019., p. 20.

[20] Staničić, 2019, p. 20.

[21] Rajko, 2020a.

[22] Available at: https://sljeme.usud.hr/usud/praksaw.nsf/fOdluka.xsp?action=openDocument&documentId=C12570D30061CE54C1258598002CCD12 accessed on 1. Fabruary 2024.

[23] Rajko, 2020b.

[24] Rajko, 2020b.


Literature

Borković, I. (2002), Upravno pravo (Administrative law), Narodne novine, Zagreb.

Đerđa, D. (2010), Opći upravni postupak u Republici Hrvatskoj (General Administrative Procedure in the Republic of Croatia), Inženjerski biro, Zagreb.

Peček, R. (2018), ‘Novi zahtjevi za sudske postupke kontrole zakonitosti sigurnosnih provjera’ (‘New requirements for judicial procedures to control the legality of security clearance procedures’), available at: https://www2.iusinfo.hr/aktualno/u-sredistu/novi-zahtjevi-za-sudske-postupke-kontrole-zakonitosti-sigurnosnih-provjera-33824 

Rajko, A. (2020a), ‘Sigurnosne provjere i klasificirani podaci u upravnom postupku i upravnom sporu’ (‘Security clearance and classified data in administrative procedure and administrative dispute’), available at: https://www2.iusinfo.hr/aktualno/u-sredistu/jos-o-koristenju-rezultata-sigurnosnih-provjera-u-upravnom-postupku-i-upravnom-sporu-42745 

Rajko A. (2020b), ‘Još o korištenju rezultata sigurnosnih provjera u upravnom postupku i upravnom sporu’ (‘More on using the results of security clearance in administrative procedure and administrative dispute’), available at: https://www2.iusinfo.hr/aktualno/u-sredistu/jos-o-koristenju-rezultata-sigurnosnih-provjera-u-upravnom-postupku-i-upravnom-sporu-42745 

Staničić, F. (2019), ‘Važnost obrazlaganja rješenja u upravnom postupku, s posebnim osvrtom na podatke s oznakom tajnosti’ (‘Importance of explaining a decision in administrative dispute with special reference to classified data’), Informator, 6564, pp. 18-20.



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