M.H. and Others v. Croatia, Application no.15670/18 and 43115/18

Facts:

An Afghan family attempted to seek asylum in Croatia. They travelled through Serbia to reach Croatia and were intercepted by Croatian police officers when resting in a field. Despite expressing a wish to seek asylum in Croatia, the applicants were ordered to walk back to Serbia by following the train tracks. The family began their journey back to Serbia, and as a train passed, it hit one of the children. The police officers with whom the applicants had previously been talking, took them to the Tovarnik railway station where a doctor established that the child had died. The applicants lodged a criminal complaint against the police officers for the death of the child.

Five months after this, the Croatian police caught the applicants at the Serbian-Croatian border attempting a second crossing. Despite them expressing a wish to apply for asylum, they were detained in a transit immigration centre in Tovarnik. Whilst in the Centre, they voiced a desire to seek international protection in Croatia. Their request was not sufficiently respected, and they were left uninformed of what was happening and provided little support. As such, they contacted NGOs and their lawyer to lodge a complaint against their placement and conditions in the Centre.

Both complaints, regarding the death of the child and their placement in the Centre, failed. Consequently, the applicants submitted an application to the European Court of Human Rights.

Decision & reasoning:

Article 2: Ineffective investigation into the child’s death

The Court concluded that the Croatian authorities failed to conduct an effective investigation into the circumstances leading to the child’s death.

Notably, when investigating the death, the State authorities relied heavily on information regarding the exact whereabouts and contact between the applicants and the Croatian police. However, no material evidence had been obtained, which could confirm the exact whereabouts of either. As such, the authorities’ conclusion that the police officers had not had any direct contact with the applicants prior to the train hitting the child, could not have been effectively established. [para. 272]

Moreover, the Court found that the State authorities failed to sufficiently inform the applicants about court hearings in which they could have helped clarify the sequence of events that occurred that night. As such, the authorities failed to effectively consider the applicant’s origin, and how this could have impacted their knowledge of the Croatian legal system. [para. 162]

For these reasons, the Court unanimously concluded that there was a violation of Article 2 and that the Croatian authorities failed to conduct an effective investigation into the circumstances leading to the child’s death.

Article 3: Detention in Centre

The Court found that there was a violation regarding the detention of the child applicants, however, no violation regarding the detention of the adult applicants.

When reaching this conclusion, the Court relied on the Croatian Children’s Ombudswoman’s remarks, which concluded that the Centre had been inadequate for accommodating children [para. 195]. Moreover, the Court considered a psychologist’s report, which stated that the applicants had been mourning the death of the child who was hit by the train. In fact, the psychologist recommended that the applicants be provided with further psychological support and activities to occupy their time [para. 198]

Notably, the Croatian Government claimed that the children had been provided with activities, however, no proof was submitted to support this claim. In fact, as per the Government’s statement, activities were only provided to the children once they had spent almost two months at the Centre.

As such, the Courts concluded that, in ordinary circumstances, the detention of the children in the Centre would not attain the threshold of severity required to engage Article 3, however, given the severity of the circumstances and the period of the detention, the threshold is met [para. 202-204].

Accordingly, the Court found that there was a violation of Article 3 in respect of the child applicants. The Court, however, was unable to conclude whether the otherwise acceptable conditions at the Centre amounted to ill-treatment contrary to Article 3 for the adult applicants [para. 211-213].

Article 5(1): Failure to conduct effective assessment

The Court found that the authorities failed to carry out an effective assessment as to whether, in view of the children involved, a less coercive alternative to detention was available. 

In fact, the Court questioned whether the authorities were acting in good faith at all. To begin with, the authorities only sought information concerning the applicant’s identity once their application for international protection had been dismissed. Moreover, throughout the proceedings, the authorities insisted that the applicants’ placement in the Centre was necessary as their identities were not registered in the Schengen or Eurodac systems. Notably, the identities were registered in the Eurodac Bulgarian system [para. 250].

The domestic authorities had additionally justified the applicants’ detention due to the flight risk they posed under provisions of domestic law. The Court found that, even if they posed a flight risk under domestic law, related administrative procedures, such as examining their application for international protection, ought to have been conducted with vigilance and expedition to limit the detention of the applicant family. This had not occurred [para. 254].

For these reasons, the Court unanimously concluded that there had been a violation of Article 5(1).

Article 34: Restriction of contact with lawyer

The Court unanimously agreed that that there had been a violation of Article 34 whereby the respondent state restricted the contact the applicants could have with their chosen lawyer [para. 336].

Article 4 of Protocol 4: Collective expulsion

The Court unanimously agreed that there had been a violation of Article 4.

Notably, there was no material evidence to confirm that the applicants had entered Croatia and were ordered to return to Serbia by the Croatian police. However, the Court acknowledged that a large number of reports, made by various bodies, stated that Croatian police forcibly return persons clandestinely entering the country from the borders with Serbia and Bosnia and Herzegovina. In fact, these reports state that returns were allegedly being conducted outside official border crossings and without prior notification of the authorities of the country to which the migrants were being returned [para. 147]. This reflected the facts stated by the applicants in this case.

Having regard to the above, there had been prima facie evidence in favour of the applicants’ version of events and the burden of proving that the applicants had not entered Croatia had rested on the authorities. However, the Government had not submitted a single argument capable of refuting that evidence.

The Court thus considered the applicants’ recollection of events to be truthful and that they had been subjected to “expulsion” within the meaning of Article 4 of Protocol No. 4. 

Outcome:

There was a violation of Articles 2, 3, 4, 5(1) and 34 of the ECHR.