Reaching the Dead-end Track on the Balkan Route – Rule of Law and Human Rights at the Croatian Borders: The Court of Strasbourg certifies a Critical Situation.
Detention Conditions – Unlawful Detention – Migrant Children – Collective Expulsion – Legal Avenues to Protection
With the judgment in the case M.H. and Others v. Croatia, the ECtHR found multiple violations of the Convention concerning the push-back of an Afghan family at the Croatian-Serbian border, which also led to the death of one of the applicants, a six-year-old Afghan child. The Court also found the subsequent placement of the same family in a transit immigration centre – for a period of 2 months and 14 days – to be contrary to the Convention, in terms of detention conditions as well as of its lawfulness. More generally, the judgment of the ECtHR unveils several serious deficiencies in the management of the Croatian borders, pointing to numerous issues in terms of respect for human rights and the rule of law principle.
Francesco Luigi Gatta
A. Facts and Ruling
1. Relevant Facts
- Attempt to cross the border, push-back and death of one of the applicants
The applicants are 14 Afghan nationals, forming a family of a man, his two wives, and 11 children aged between one and seventeen at the relevant time.
They left their home country in 2016. After traveling across numerous countries, in 2017, they finally reached the Croatian border from Serbia. They were pushed back by Croatian border authorities and forced to return in Serbia: while walking along the train tracks using them as a guide for direction, a train passed, hit and killed one of the children.
The applicants subsequently lodged a criminal complaint stating that, once reached the Croatian border, they had been denied the possibility of seeking asylum, and had been pushed back with the order to return to Serbia by following the train tracks, which led to the death of one of the children. Criminal investigations were conducted by the competent Croatian authorities, being characterized, however, by several serious deficiencies and a rather obscure and sneaky modus procedendi. In particular, various problems arose in relation to the recordings of the images and videos taken by the border police with thermographic cameras: allegedly, they were out of order at the relevant time, their storage system was equally broken, with the consequent impossibility to view or download their recorded contents. The Croatian Ombudswoman, who conducted a parallel inquiry into the case, suggested to inspect signals from the mobile phones of the Croatian police officers, as well as to check their police car GPS location system, in order to shed light on the contact and interactions with the applicants before the train accident. The request to employ such an investigative method was ignored, as well as further evidentiary material, such as declarations and statements by Serbian police officers.
The Croatian judicial authorities closed the case, concluding that the applicants had not crossed the border and entered Croatia, and that the accident had taken place in Serbia, without any involvement of the Croatian police officers. The Croatian Constitutional Court, which was involved following a constitutional complaint by the applicants, found that the investigation into the death of the migrant child had been effective and properly conducted.
- Entry into Croatia, request for asylum and detention
Meanwhile, in March 2018, the applicants tried again to clandestinely enter Croatia from Serbia. They were caught by the Croatian police and taken to a police station. They applied for asylum but, since they had no identity documents, they were placed in a closed-type transit immigration centre located in Tovarnik. The applications for international protection were dismissed on the grounds that they should be returned to Serbia, which was considered a safe third country.
Meanwhile, their placement in the centre lasted for 2 months and 14 days, being justified by the need to establish the applicants’ identities as well as by the risk of flight. The applicants challenged the lawfulness and the conditions of their detention: first, unsuccessfully, before the Croatian administrative courts; then, before the Croatian Constitutional Court, which found their deprivation of liberty to be in compliance with the law and responding to adequate standards and conditions, including for accommodating children with parents.
- Access to a lawyer and right to defense
The applicants were represented by the lawyer S.B.J., in favour of which the father and one of his wives had signed a power of attorney in 2017 with the help of an NGO, while the Afghan family was in Serbia. Once the applicants entered Croatia in 2018 and were placed in detention, their lawyer tried to establish contact with the family in order to meet and represent them. The Croatian authorities denied the request on the grounds that the lawyer did not have a valid power of attorney. What is more, a criminal investigation was launched in regard of the lawyer, on suspicion that the signatures on the power of attorney had been forged; the criminal police arrived at S.B.J.’s law firm, asking for the original power of attorney and questioning her and her colleagues. The Croatian Bar Association protested against such police actions, highlighting their intimidatory character and the illegitimate restriction of contact between the lawyer and her clients, which amounted to a breach of the independence of the legal profession.
Since contacts with the detained applicants were impeded, the lawyer S.B.J. submitted a request for interim measures pursuant to Rule 39 of the Rules of Court, asking the ECtHR to order Croatia to ensure the applicants’ access to their lawyer. She further asked the Court to order the applicants’ release from the Tovarnik Immigration Centre and to prevent their removal to Serbia.
Later, the Croatian Children’s Ombudswoman visited the Afghan family detained in the Tovarnik Centre. The applicants confirmed that they were familiar with the lawyer S.B.J. and wished to meet her and be represented by her. Eventually, after a month and half since the applicants’ placement in detention, the lawyer S.B.J. managed to meet them.
2. Complaints, Procedure and Judgment of the Court
Before the ECtHR the applicants invoke numerous violations of the Convention. Namely:
- Article 2 (right to life), regarding the fatal train accident, arguing, on the one hand, that Croatia had been responsible for the death of one of the applicants (substantive limb) and, on the other, that the subsequent investigation had been ineffective (procedural limb);
- Articles 3 (prohibition of inhuman and degrading treatment) and 8 (respect for private and family life), regarding the placement and the detention conditions in the Tovarnik immigration centre;
- Article 5 (right to liberty and security), regarding the lawfulness of the detention in the Tovarnik immigration centre;
- Article 4, Protocol No. 4 (prohibition of collective expulsion of aliens), regarding the summary removal to Serbia;
- Article 34 (right of individual petition), regarding Croatia’s failure to comply with the Rule 39 orders, the lack of access to a lawyer and the hindrance of the effective exercise of the right to individual application;
- Article 14 (prohibition of discrimination), taken in conjunction with Articles 3, 5, 8, 4 of Protocol No. 4, and 1 of Protocol 12, regarding the discrimination on the basis of the status as migrant asylum-seekers.
The applications were allocated to the first Section of the ECtHR and processed with priority (Rule 41, Rules of Court). Five third parties’ interventions were received by the Court. Two judges expressed separate opinions (concurring: Judge Turkovic, Croatia; partly dissenting and partly concurring: Judge Wojtyczek, Poland).
The ECtHR found (unanimously) a violation of Article 2, under its procedural limb, in the light of the ineffective investigation into the death of the six-year-old migrant child. It conversely chose not to examine the substantive side of Article 2, not considering itself in a position to reach clear and definitive findings in consideration of the evidentiary material at its disposal. It further found a violation of Article 3 regarding the detention conditions in the Tovarnik centre in respect of the applicant children, but not in respect of the adult applicants; a violation of Article 5(1), relating to the lawfulness of the applicants’ placement in the same centre; a violation of Article 4, Protocol No. 4 for the collective expulsion to Serbia; a violation of Article 34, relating to the hindrance of the effective exercise of the applicants’ right of individual application, due to, in particular, the restriction of the access to the applicants’ lawyer.
The ECtHR decided not to examine the remaining complaints under Articles 8, 14 and 1 of Protocol No. 12. Finally, based on Article 41 ECHR, the Court awarded the applicants the sum of EUR 40.000 jointly, in respect of non-pecuniary damage.
M.H. and Others v. Croatia represents a landmark case which certifies widespread practices of border and police violence in Croatia. It comes at a time in which Croatia is in the process of joining the Schengen Area and already applying the Schengen acquis to a large extent. Recently, on 9 December 2021, the Council of the EU formally acknowledged that Croatia “has fulfilled the necessary conditions” to join Schengen. The Council conclusions pave the way for the accession, despite a widely reported practice of border violence and push-back of migrants at the Croatian borders (as documented, just to mention few examples, by FRA; CoE Commissioner for Human Rights; Special Representative of the Secretary General on Migration and Refugees; Committee for the Prevention of Torture; ECRE; Human Rights Watch).
The case M.H. and Others, thus, is just the tip of the iceberg, which confirms and certifies an existing, critical situation. It is worth recalling that, according to Article 4 of the Schengen Borders Code, “Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union…, relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951…, obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights”.
Despite the commendations coming from the EU institutions as to the progress made by Croatia towards an effective, law-compliant border management, several and serious rule of law and human rights issues persist at the Croatian (and thus EU’s external) borders. It is therefore hard to understand how “the necessary conditions” could have been met by Croatia, as shown by the ECtHR in the judgment at hand.
1. Rule of law and human rights at the Croatian borders
The rule of law deficiencies and the human rights issues relating to the management of the Croatian borders emerge emblematically in the case M.H. and Others. The attitude of the Croatian authorities as well as the circumstances surrounding the investigation into the death of the Afghan child are quite telling in this respect. Delays, deficiencies and incoherence in the conduct of the investigative authorities, coupled with the “loss” of the decisive, material evidence point to a conscious intention to cover up the police actions related to the train accident. The ECtHR, in particular, highlights how Croatian authorities never verified the allegation of the lack of video recordings of the events occurred at the border, nor they addressed the request to inspect mobile phones and police car GPS signals. Other evidentiary matters were simply ignored or left unsolved.
The intention to bury the case also emerges from the denial of the lawyer-applicant contact, even after a Rule 39 request was specifically addressed to the ECtHR in order to allow the legal representative to meet the Afghan family detained in the Tovarnik centre. The lawyer was also subjected to criminal-law pressure based on the excuse of the power of attorney, and the applicants were not informed that she was repeatedly trying to contact them. The Court concludes that the Croatian authorities’ intimidatory conduct was aimed at discouraging from taking the case to Strasbourg, thereby finding a violation of the right to individual application under Article 34 ECHR.
In this regard, the ECtHR further highlights two things. First, the right to be represented and defended is crucial in the migration context, especially for migrants who are in a vulnerable position, often with no knowledge of a language other than their native one, and who are subject to distress and traumatic experiences. In this respect, the Court recognizes that “the fact that a person had been caught clandestinely crossing the Croatian-Serbian border could not serve as a basis for depriving that person of a lawyer’s assistance” (§325). Second, and in light of the importance of the right of access to a lawyer, the ECtHR acknowledges the crucial role of NGOs, which, being operative on the ground, often serve as an intermediary to ensure legal representation. In M.H. and Others, indeed, the parents signed the power of attorney in favour of the lawyer S.B.J. while they were in Serbia, in the presence of NGO representatives and without the lawyer being personally present. The physical absence of the lawyer is irrelevant for the Court, which underlines that “in the migration context NGOs regularly work alongside lawyers and help them establish a connection with persons in need” (§332).
2. Conditions of detention and its lawfulness
The applicants also complained about their deprivation of liberty, protracted for 2 months and 14 days, in prison-like conditions in the Tovarnik immigration centre. The Croatian Government counterargued that, despite being a closed-type structure, the centre was newly built, equipped to accommodate families with small children, providing adequate facilities and services, including various leisure and educational activities for migrant children. It also observed that the Afghan family had received proper medical and psychological assistance during the stay in the centre.
In examining the complaint, the Court first recalls its principles regarding immigration detention with specific regard to children. It reiterates that migrant children entail a position of extreme vulnerability (regardless of whether they are accompanied or not, and irrespective of their legal status), and that, therefore, they deserve special assistance in light of their specific needs. Recalling the Grand Chamber judgment in Tarakhel v. Switzerland, the Court further stresses that reception and accommodation conditions for migrant children must avoid “a situation of stress and anxiety, with particularly traumatic consequences” (§119).
Based on such premise, the ECtHR acknowledges that the overall material conditions in the Tovarnik centre were actually good and satisfactory. However, it also highlights “the presence of elements… resembling a prison environment” (§194), such as walls, barriers, bars on the windows and a massive and constant presence of police officers. Also, the Court observes that children had a limited possibility to play, which “inevitably causes anxiety and is harmful for children’s well-being and development” (§197). The Strasbourg judges here point to a mounting “fear of uncertainty”, which should have been addressed, with the duty for Croatian authorities to make children play, entertain them, organize activities to occupy their time, thereby distracting them from their situation of vulnerability and distress. The decisive factor for the violation of the Convention, however, is the duration of the Afghan children’s detention (2 month and 14 days), which aggravated their sense of uncertainty and vulnerability, thereby meeting the threshold of severity required under Article 3 ECHR. It is worth reading the Court’s own words on this point (§199):
The Court is of the view that the detention of children in an institution with prison-type elements, where the material conditions were satisfactory, but where the level of police surveillance was high and there were no activities structuring the children’s time, would perhaps not be sufficient to attain the threshold of severity required to engage Article 3 where the confinement was for a short duration, depending on the circumstances of the case. However, in the case of a protracted period, such an environment would necessarily have harmful consequences for children, exceeding the above-mentioned threshold. The Court reiterates that the passage of time is of primary significance in this connection for the application of Article 3 of the Convention (see A.B. and Others, § 114, and R.R. and Others, § 64, both cited above).
Such a protracted deprivation of liberty of children, concludes the Court, must have been perceived as a “never-ending situation”, causing “accumulated psychological disturbance and anxiety” (§201). A violation of Article 3 ECHR is thus declared in respect of the applicant children. The same conclusions, on the contrary, are not reached with regard to the adult applicants. Here the Court considers the overall situation as tolerable for the Afghan parents, since they were not separated from the children and the material conditions of the Tovarnik centre were good, which ultimately “limited the negative effect of that uncertainty” (§212).
A final consideration: the applicants raised the complaint regarding the detention conditions under Article 3 and 8 ECHR; the Court, however, chose to examine the issue from the perspective of the former provision alone. Judge Wojtyczek criticized this approach, arguing that, in the existing case-law, so far the question of detention of minors in suitable conditions has been addressed and assessed as an issue under Article 8. The fact of framing the issue under Article 3, he argues in his separate opinion, leads to the lowering of the threshold of severity required by that norm, with a further consequence that “the protection offered to minors incites immigrants to bring children with them and use them in an instrumental manner for the purpose of obtaining better treatment from the immigration authorities” (Opinion of Judge Wojtyczek, §1.3.). Such a theory appears, at the very least, doubtful. On the other hand, and in any case, the management of Croatian borders shows us exactly that border guards and police authorities do not hesitate to adopt violent and unlawful conducts towards migrants, including children.
Finally, as regard the lawfulness of the detention, the ECtHR expresses “serious doubts” (§249) as to the conduct of the Croatian authorities in the light of the specific circumstances of the case. In particular, it does not believe that an assessment was carried out, promptly and diligently, as to whether a less coercive measure to detention had been possible with regard to the Afghan family. The good faith of the Croatian authorities is equally questioned: the applicants were kept in detention for a prolonged duration of time while the relative administrative procedures were being conducted without the required diligence and expedition so as to limit, as far as possible, the detention of the applicants.
3. Summary push-back, no legal avenues available and collective expulsion
The applicants complained about their summary removal to Serbia, without their individual situation being considered and assessed. The Croatian Government defended itself by invoking the “own culpable” conduct exception, developed by the Grand Chamber of the ECtHR in the judgment N.D. and N.T. v. Spain: in short, the Afghan family had the possibility to enter Croatia legally, and genuine and effective access to the territory was possible through an official border crossing point, which, however, the applicants failed to use. The Government also invoked the classic, recurrent “we must protect Schengen” argument, especially highlighting that Croatia is a EU Member State “with the prospect of joining the Schengen Area in the near future” (§291), having therefore the obligation to “protect the State borders from illegal crossings” (ibidem).
The ECtHR first acknowledges that there has been an expulsion, then performs the two-tier test to assess whether it has been collective: first, a procedural test (has there been a reasonable, objective examination of each individual case?); second, the own culpable conduct test (if there has been no individualised examination, is this to be attributed to the applicants’ own conduct?).
The procedural test leads the Court to establish that the expulsion of the Afghan family had been indeed of a collective nature. As to the second test, regarding the potential applicability of the own culpable conduct or N.D. & N.T. exception, the ECtHR excludes any parallelism with the Spanish case: on that occasion, migrants irregularly crossed the border en masse, using force and taking advantage of their large number, thereby creating a disruptive situation and endangering the public safety. Here, on the contrary, a family, with children in a vulnerable position, entered the territory clandestinely to seek asylum, without posing any threat or danger to the State security.
The Court then checks the availability of legal avenues to enter Croatia, and concludes that the Government did not prove their existence and effective accessibility. Means of legal entry, in particular, are assessed by the ECtHR both internally and externally: when it comes to the official border crossing points between Croatia and Serbia, the Court did not receive – despite multiple requests in this respect – any specific information about functioning and features of border procedures (e.g. exact location of the official border check-points, modalities to lodge an asylum application, availability of interpreters and legal assistance, etc.). The silence of the Croatian Government on this point is rather noisy, and quite telling of the deficiencies – possibly with a systemic character – in terms of border control and migration and asylum management. Externally, the possibility of submitting an application at the Croatian embassy in Serbia was equally considered as not available. In conclusion, for the Court, the N.D. & N.T. exception is not applicable in this case, the collective expulsions being therefore unjustified. A violation of Article 4, Protocol No. 4 ECHR is thus found.
Finally, the separate opinion expressed on this point by Judge Turkovic deserves a mention. The Croatian Judge, indeed, develops interesting considerations with regard to the prohibition of collective expulsion and the own culpable exception in a context involving displaced migrant children. In her view, in a situation such as the one of the Afghan family entering Croatia without presenting any danger to security, the best interests of the child shall always have the primary consideration, and the specific vulnerabilities and protection needs of asylum-seeking children must receive a clear and comprehensive assessment. In light of such considerations, Judge Turkovic pushes the argumentation even further, so as to almost de-construct the own culpable/N.D. & N.T. exception: the collective push-back of the Afghan family with children would have been contrary to Article 4, Protocol No. 4 ECHR even if Croatia had provided genuine and effective access to entry procedures and even if the applicants had no cogent reasons not to make use of such procedures.
An interesting consideration, which questions the exception of the own culpable conduct, pointing out that conflict between competing interests, such as the protection of public order and the best interests of the child, must be resolved carefully and on a case-by-case basis. In such a balancing exercise, however, high priority shall be given to children’s specific vulnerabilities and protection needs.
Judge Turkovic concludes by affirming that “complex migration-related challenges can and should be met in a human rights-compliant way, it being understood that this will take a common approach and shared effort” (Opinion of Judge Turkovic, §12).
One could not agree more. But certainly a lot of work remains to be done.
C. Suggested Reading
To read the case :
ECtHR, Judgment of 18 November 2021, M.H. and Others v. Croatia, Appl. nos. 15670/18 and 43115/18
Case law :
- ECtHR (GC), N.D. and N.T. v. Spain, judgment of 13 February 2020, Appl. nos. 8675/15 and 8697/15 ;
- ECtHR, Asady and Others v. Slovakia, judgment of 24 March 2020, Appl. no. 24917/15 ;
- ECtHR, M.K. and Others v. Poland, judgment of 23 July 2020, Appl. nos. 40503/17, 42902/17 and 43643/17 ;
- ECtHR, D.A. and Others v. Poland, judgment of 8 July 2021, Appl. no. 51246/17 ;
- ECtHR, Shahzad v. Hungary, judgment of 8 July 2021, Appl. no. 12625/17.
- E. Delval, “Quant au droit d’accès effectif aux procédures d’asile, tel que découlant de l’article 3 de la CEDH et de l’article 4 du protocole no. 4, des demandeurs d’asile bloqués aux frontières de la Pologne et de la Lettonie”, Cahiers de l’EDEM, octobre 2021 ;
- F.L. Gatta, “Systematic Push Back of ‘Well Behaving’ Asylum Seekers at the Polish Border: M.K. and Others v. Poland”, Strasbourg Observers, 7 October 2020 ;
- F.L. Gatta, “ ‘Tell me your Story, but Hurry up Because I Have to Expel you” – Asady and Others v. Slovakia: How to (Quickly) conduct Individual Interviews and (not) Apply the ND & NT “Own Culpable Conduct” Test to Collective Expulsions”, Strasbourg Observers, 6 May 2020 ;
- H. Hakiki, “N.D. and N.T. v. Spain: defining Strasbourg’s position on push backs at land borders? ”, Strasbourg Observers, 26 March 2020 ;
- H. Hakiki, D. Rodrik, “M.H. v. Croatia: Shedding Light on the Pushback Blind Spot”, VerfassungsBlog, 29 November 2021 ;
- L. Leboeuf, “Interdiction des expulsions collectives et mesures d’expulsions immédiates et systématiques: la Cour européenne des droits de l’homme entre équilibrisme et contorsions”, Cahiers de l’EDEM, mars 2020 ;
- D. Thym, A Restrictionist Revolution? A Counter-Intuitive Reading of the ECtHR’s N.D. & N.T.-Judgment on ‘Hot Expulsions’, Odysseus Network Blog, eumigrationlawblog, 17 February 2020 ;
- K. Turković, Challenges to the Application of the Concept of Vulnerability and the Principle of Best Interests of the Child in the Case Law of the ECtHR Related to Detention of Migrant Children, in B. Çali,
- L. Bianku, I. Motoc (Eds.), Migration and the European Convention on Human Rights, Oxford, 2021, pp. 104-137;
- R. Wissing, “Push backs of “badly behaving” migrants at Spanish border are not collective expulsions (but might still be illegal refoulements)”, Strasbourg Observers, 25 February 2020.
To cite this contribution : F.L. Gatta, “Reaching the Dead-end Track on the Balkan Route – Rule of Law and Human Rights at the Croatian Borders: The Court of Strasbourg certifies a Critical Situation”, Cahiers de l’EDEM, December 2021.