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Croatia / Constitutional Court of the Republic of Croatia / U-III-208/2018

Nurettin Oral, applicant

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court of the Republic of Croatia
Decision date:

Key facts of the case:

A citizen of the Republic of Turkey and resident of the Swiss Confederation, was deprived of liberty while crossing the Croatian border with Serbia as he was found in the security database following an arrest warrant issued by Turkish authorities.

The court of first instance found that all the legal preconditions for the extradition of the applicant to the Republic of Turkey had been fulfilled due to a prosecution of the criminal offense of violating national unity and territorial integrity. The Supreme Court rejected the applicant's appeal and approved the extradition. The applicant appealed to the Constitutional Court against the decisions of the courts of lower instances, requesting the Constitutional Court to ascertain whether the conditions for his extradition to the Republic of Turkey on the basis of the International Criminal Matters Act had been fulfilled. The Constitutional Court upheld the applicant's appeal, set aside the decisions of the County Court in Vukovar and the Supreme Court and moved the case to the County Court for a new proceeding. The complainant's main complaint was that the competent authorities (Vukovar County Court and the Supreme Court) failed to take into account his refugee status.

Key legal question raised by the Court:

In its decision supporting the extradition, the Supreme Court of the Republic of Croatia stated that the fact  that the applicant acquired a refugee status in Switzerland was not decisive, as Switzerland is not a member of the European Union. The applicant, however, argued that the obligation to recognize his refugee status derived from international treaties which are superior to national laws.

The applicant argued that, besides the Refugee Convention, Croatia is also bound by EU law, including, among other, Article 19 paragraph 2 of the Charter of Fundamental Rights of the European Union, which refers precisely to the Convention Relating to the Status of Refugees which forms a basis for the asylum system and the system of international protection in Europe.

Hence, the Constitutional Court had to assess whether a refugee status acquired in a non-EU Member State was relevant for granting the non-refoulement protection in this case. The Constitutional Court established that, with respect to the protection of refugees and freedom of movement, Switzerland acquired a status comparable to the one granted to EU Member States due to the fact that Switzerland is party to bilateral treaties with the EU establishing free movement of persons and granting asylum protection (“Schengen and Dublin systems”).

Outcome of the case:

The Constitutional Court set aside the decisions of lower instances and moved the case back to the County Court as it found their reasoning contrary to the provisions of the Croatian Constitution on the right to a fair trial (Article 29), on the extradition of third country nationals (Article 33,p.2) and the application of EU law (Article 141c). The Constitutional Court established that the Supreme Court failed to consider the specific relation between the Confederation of Switzerland and the EU and assess its potential legal effects, and therefore did not find the refugee status approved by the Swiss authorities relevant for granting a non-refoulement protection within the EU territory.

Taking into account the importance of the principle of mutual confidence between the participating countries of the Dublin system, and the fact that the competent Swiss authorities recognized the applicant as a refugee in accordance with the Dublin system settings and principles, including a presumption of respect for the fundamental rights of the applicant by Swiss authorities, the Constitutional Court ruled that the decisions of domestic courts according to which the applicant would be extradited despite such positive assessment constituted a violation of Article 33, paragraph 2 of the Croatian Constitution that regulates extradition of aliens. It also established that they represented a violation of the non-refoulement principle which the Republic of Croatia is obliged to respect not only as a Member State of the European Union, but also by the mere fact that it is a party to the Geneva Convention and its 1967 Protocol.