Information Note on the Court’s case-law 256
Judgment 18.11.2021 [Section I]
Ineffective investigation into child’s death after alleged denial of opportunity to seek asylum and order to return to Serbia following train tracks: violation
Child applicants kept in immigration centre with prison-type elements for more than two months in material conditions adequate for the adult applicants: violation, no violation
Lawful arrest or detention
Failure to demonstrate required assessment, vigilance and expedition in proceedings in order to limit asylum seekers’ family detention as far as possible: violation
Article 4 of Protocol No. 4
Prohibition of collective expulsion of aliens
Summary return of parent and six children by Croatian police outside official border crossing and without prior notification of Serbian authorities: violation
Facts – The applicants are an Afghan family of fourteen. They left their home country in 2016, travelling, inter alia, through Serbia before coming to Croatia. Among other things, they allege that on 21 November 2017, the first applicant and her six children entered Croatia from Serbia, but were taken back to the border by police officers and ordered to go back to Serbia by following the train tracks. One of the children, MAD.H, was hit by a passing train and killed.
On 21 March 2018, the Croatian police caught the applicants clandestinely crossing the Serbian-Croatian border and issued decisions in respect of the first to fourth applicants, placing them and the applicant children in a transit immigration centre in Tovarnik. The applicants complained unsuccessfully of their placement and conditions in the Centre up to the Constitutional Court. The applicants also submitted applications for international protection which were rejected, the decisions being served on them on 30 March 2018, and against which they appealed unsuccessfully.
Law – Article 2 (procedural aspect):
The key elements in the investigation ensuing MAD.H’s death had been establishing the exact whereabouts of, and contact between, the first applicant and her children and the Croatian police officers on that date, and verifying allegations of pushbacks and deterrent practices allegedly used by the Croatian authorities in the present case.
The domestic authorities had concluded that the first applicant and her children had never entered Croatian territory and that the police officers had not had any direct contact with them prior to the train hitting the child in Serbia. In so doing they had relied on the statements of the police officers on duty on the relevant date, which they had deemed concurring, whereas the statements of some of the applicants had been deemed contradictory as regards crucial facts. In the circumstances of the case, the Court did not see why the discrepancy in the applicants’ statements had been given such crucial importance. On the other hand, the domestic authorities had in no way addressed the change in the police officers’ statements during the investigation, nor a discrepancy between the police officers’ submission and that of the doctor who had intervened after the accident.
Further, no material evidence had been obtained which could have confirmed beyond any doubt the applicants’ and the Croatian police officers’ exact whereabouts on the relevant evening. Nor had the investigating authorities addressed the Serbian authorities’ finding that the Croatian authorities had forcefully returned the applicant and her children to Serbia on the relevant date in breach of the readmission agreement between the two countries.
Moreover, even though the investigation into the circumstances of MAD.H.’s death had been initiated following a criminal complaint lodged by the lawyer S.B.J. on the applicants’ behalf, the investigating authorities had not informed her about the hearing of the first and second applicants on 31 March 2018, where she could have helped clarify the alleged inconsistency in their statements. The investigation authorities had refused to provide S.B.J. with information regarding the investigation, or to take into account her proposals concerning material evidence, and the applicants had been allowed to meet with her only in May 2018. Having regard to the fact that the applicants were an Afghan family with no knowledge of the Croatian language or legal system and no contacts in Croatia, it was hard to imagine how they could have effectively participated in the investigation without the assistance of a lawyer. In those circumstances, the investigative authorities had failed to ensure that the applicants, as MAD.H’s next-of-kin, had been involved in the procedure to the extent necessary to safeguard their legitimate interests.
In view of the above-mentioned deficiencies, the State authorities had failed to conduct an effective investigation into the circumstances leading to MAD.H’s death.
Conclusion: violation (unanimously).
Article 3 (substantive aspect):
The material conditions in the Centre had been satisfactory. However, the Court could not overlook the presence of elements resembling a prison environment; it had been surrounded by a wall, with police officers posted by its entrance and by the doors to each floor, and with barriers in the hallways and bars on the windows. Also, the doors to the applicants’ rooms had a glass opening through which it was possible to see from the hallway into the room. The Court noted the Croatian Children’s Ombudswoman’s remarks, inter alia, that the Centre had been inadequate for accommodating families and children, and that the applicants had consistently complained to NGOs that during the initial part of their stay, they had been confined to their rooms and had been restricted in their access to indoor leisure activities and the outdoor facilities. There had been contradictory information received by the authorities in that regard and the Court was unable to make any definitive findings on that particular issue. However, it was important to emphasise that the restriction of access to leisure activities, outdoor facilities and fresh air inevitably causes anxiety and is harmful for children’s well-being and development.
Further, the psychologist had established in March 2018 that the applicants had been mourning the death of MAD.H. and experiencing fear of uncertainty. He had recommended providing them with further psychological support and organising activities to occupy the children’s time. The Government submitted that the children had been provided with activities without submitting any proof to that effect. In any event, by mid-May 2018, the applicant children had already spent almost two months in the Centre without any organised activities to occupy their time.
The Court was 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 of detention, such an environment would necessarily have harmful consequences for children, exceeding the required threshold.
In that regard, various international bodies, including the Council of Europe, were increasingly calling on States to expeditiously and completely cease or eradicate immigration detention of children. In the present case, the domestic authorities had failed to act with the required expedition in order to limit, as far as possible the detention of the eleven applicant children and their parents. The detention over a period of two months and fourteen days, in the conditions set out above, had exceeded the permissible duration beyond which Article 3 is engaged. Bearing in mind that the applicant children had been in a particularly vulnerable condition due to painful events, as most of them had witnessed the tragic death of their six-year-old sister, the situation must have caused them accumulated psychological disturbance and anxiety.
The Court also noted the applicants’ uncertainty as to whether they had been in detention and whether legal safeguards against arbitrary detention had applied, having regard to the fact that they had been placed in the centre on 21 March 2018 and received legal advice in that regard only on 12 April 2018 and that they had not been allowed to see their chosen lawyer S.B.J. until 7 May 2018. Inevitably, that situation had caused additional anxiety and degradation of the parental image in the eyes of the child applicants.
There had accordingly been a violation of Article 3 in respect of the child applicants. However, the Court was unable to conclude that the otherwise acceptable conditions at the Centre for the adult applicants had been particularly ill-suited to their individual circumstances to such an extent as to amount to ill-treatment contrary to Article 3.
Conclusion: violation in respect of the applicant children (six votes to one), no violation in respect of the adult applicants (unanimously).
Article 5 § 1:
The police had placed the applicants in detention on 21 March 2018 on the basis of the International and Temporary Protection Act for the purpose of verifying their identities. The Court had serious doubts as to whether in the present case the authorities had carried out an assessment as to whether, in view of the numerous children involved, a less coercive alternative measure to detention had been possible. It had only been on 10 April 2018 that the authorities had sought information with a view to checking the applicants’ identity, after an inquiry by the Croatian Ombudswoman with the Ministry of the Interior. By then, the applicants’ application for international protection had already been dismissed for over ten days. That circumstance raised concerns as to the authorities’ acting in good faith. Furthermore, throughout the proceedings the authorities had maintained that most of the applicants’ placement in the Centre had continued to be necessary as their identities had not been established, given that they had not been registered in the Schengen or Eurodac systems, although they had in fact been registered in the Eurodac Bulgarian system. Insisting, in those circumstances, that the applicants’ detention had continued to be justified, could raise further concerns as to the authorities’ acting in good faith.
On 20 May 2018, the domestic authorities had additionally justified the applicants’ detention by the flight risk they had posed under the relevant provision of domestic law. The Court had no cause to call into question the authorities’ conclusion related to the flight risk. However, where the domestic authorities had decided, on grounds provided for by law, to detain children and their parents for immigration related purposes in exceptional circumstances, the related administrative procedures, such as examining their application for international protection, ought to have been conducted with particular vigilance and expedition in order to limit, as far as possible, the detention of the applicant family. In that regard, it had taken another three months, after the applicants’ application for international protection had been dismissed, for the domestic court to review their appeal in order for the decision to become enforceable.
The situation had been further compounded by the fact that the applicants had not been afforded relevant procedural safeguards, as shown by the domestic court finding that there had been no evidence that they applicants had been appraised of the decisions placing them in the Centre in a language they could understand.
Conclusion: violation (unanimously).
Article 4 of Protocol No. 4:
The applicants had further complained that they had been subjected to collective expulsions without any individual assessment of their circumstances.
The applicants’ description of the events of 21 November 2017 had been specific and consistent throughout the whole period following the death of MAD.H. At the same time, there was no material evidence to confirm that the applicants had entered Croatia on 21 November 2017 and had been returned to the border with Serbia by the Croatian police. The alleged return had occurred at night-time in the winter, without them being handed over to the officials of that country, and without any kind of official procedure. The Court acknowledged in that connection a large number of reports by various bodies concerning summary returns of persons clandestinely entering Croatia from the borders with Serbia and Bosnia and Herzegovina, where they had been forced to leave the country. The summary 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.
In that connection, footage of video surveillance might be critical evidence for establishing the circumstances of the relevant events. The area where the applicants had allegedly entered Croatia had been under constant surveillance, including by stationary and thermographic cameras. The Court had already found a violation of Article 2, inter alia, because the investigative authorities had never verified the police allegation that there had been no recordings of the impugned events, and that they had failed to inspect the signals from their mobile telephones and the police car GPS in order to establish the applicants’ whereabouts and their contact with the Croatian police.
Having regard to the above considerations, in the particular circumstances of the present case, 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 and had not been summarily returned to Serbia prior to the train hitting MAD.H had rested on the authorities. However, the Government had not submitted a single argument capable of refuting that prima facie evidence. The Court thus considered it to be truthful that on 21 November 2017 the Croatian police officers had returned the first applicant and her six children to Serbia without considering their individual situation. The fact that the first applicant and her six children had entered Croatia irregularly and had been apprehended within hours of crossing the border and possibly in its vicinity did not preclude the applicability of Article 4 of Protocol No. 4. They had been subjected to “expulsion” within the meaning of this provision.
The Government had argued that the applicants had engaged in “culpable conduct” by circumventing the legal procedures that had existed for entry into Croatia. However, the Government had been unable to establish whether at the material time the respondent State had provided any genuine and effective access to procedures for legal entry into Croatia, in particular with a view to claiming protection under Article 3.
Conclusion: violation (unanimously).
The Court also found, unanimously, that there had been a violation of Article 34, in that the respondent State had hindered the effective exercise of the applicants’ right of individual application, on the basis of the restriction of contact between the applicants and their chosen lawyer, and the criminal investigation and pressure to which that lawyer had been subjected.
Article 41: EUR 40,000 in respect of non-pecuniary damage.