- Judgment date: 2020-02-04
- Communication date: 2018-05-11
- Application number(s): 15670/18
- Country: HRV
- Relevant ECHR article(s): 3
Struck out of the list (Article 37-1-a - Absence of intention to pursue application)
Pecuniary damage - award (Article 41 - Pecuniary damage
- Result: No violation SEE FINAL JUDGMENT
- Probability: 0.564645
- Prediction: Violation
Communication text used for prediction
The applicants, Ms M.H.
and thirteen other persons, are a family of three adults and eleven minor children.
They are Afghan nationals currently placed in the Tovarnik detention centre in Croatia.
On 6 April 2018 the Court (the duty judge) decided ex officio that their identity should not be disclosed to the public (Rule 47 § 4).
They are represented before the Court by Ms Sanja Bezbradica Jelavić, a lawyer practising in Zagreb.
The facts of the case, as so far submitted by the parties, may be summarised as follows.
Background to the case 3.
In 2016 the applicants fled Afghanistan.
It appears that before coming to Croatia they have been to Turkey, Bulgaria and Serbia.
In 2017 the first applicant and her six children (five of whom are applicants in this case) entered Croatia from Serbia when they were stopped by the Croatian police.
They allegedly told the police that they wished to seek asylum but were denied the opportunity to do so and were pushed back to the Serbian border.
Near the border one of the children was hit by a train and died.
They were then taken to Serbia.
Subsequently the applicants attempted to enter Croatia on several occasions, but allegedly they were pushed back by the Croatian police.
B. Asylum proceedings 6.
On 21 March 2018 the applicants succeeded to enter Croatia and submitted requests for asylum.
On the same day a decision was issued limiting their freedom of movement and placing them in an immigration detention centre in Tovarnik (Tranzitni prihvatni centar za strance Tovarnik, hereinafter “the Tovarnik detention centre”) for an initial period of three months, in order to check their identity.
They were not served with the decision and did not pursue legal remedies against it.
On 28 March 2018 the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Uprava za upravne i inspekcijske poslove) dismissed the applicants’ asylum requests on the grounds that they should be returned to Serbia, which was considered to be a safe third country.
The applicants subsequently brought an administrative action in the Osijek Administrative Court (Upravni sud u Osijeku).
Those proceedings, which have a suspensive effect, are currently still pending.
C. Conditions of the applicants’ placement in the Tovarnik detention centre 9.
The Tovarnik detention centre is a closed type detention centre.
According to the Government’s submissions, the Tovarnik detention centre is fully equipped to accommodate families with small children.
It has the capacity to receive 62 persons, whereas currently there are 26 persons placed there (14 applicants and another Afghan family of 12).
There are rooms for placement of families with children and a children’s playroom equipped with toys and books.
There is a restaurant, a room for socialising, a basketball, football and handball court outside the building, as well as a children’s playground.
Upon their arrival each of the applicants was given a package to satisfy their basic needs (clean clothes and underwear and hygienic products), and they are served three meals per day.
The applicants are placed in three rooms next to each other.
They have fresh water, they can shower when they wish and are allowed to open/close the windows.
The doors of the rooms in which they are placed are open all the time and they are free to move around the rooms and the hallway.
They are allowed to use outdoor facilities twice per day – two hours in the morning and two hours in the afternoon.
At 10 p.m. the floor doors and the building doors are closed.
The facility is guarded by policemen who sometimes play with the children.
The applicants were visited by doctors, psychologists and officials from the Croatian Ombudsman Office and the Croatian Child Ombudsman Office.
The Government added that the applicants, if transferred to an open centre for asylum seekers in Zagreb or in Kutina, would not benefit from the conditions they are currently provided with in the Tovarnik detention centre.
In particular, the Zagreb centre has a capacity to receive 600 people, and currently there are 336 people, most of them male adults.
The Kutina centre has the capacity to receive 100 persons, and currently there are 51 people there.
In both centres there was a large fluctuation of people, which made them less suitable for small children.
The Government deemed that the applicants’ stay in the Tovarnik detention centre complied with Article 3 requirements.
In their further submissions, the Government submitted that they wished to rectify their statement regarding the applicants’ possibility to use the outdoor facilities.
They claimed that in fact the applicants were free to use them any time between 7 a.m. and 10 p.m. 13.
The applicants’ representative informed the Court, after having personally met the applicants on 7 May 2018, that they were kept in prison-like conditions.
In particular, until recently the rooms in which the applicants were placed were locked all day long and they could see each other only during meals.
They were allowed to spend only one hour per day outdoors.
The children were now allowed to go outside and play with the ball but only when the Red Cross would come to visit the centre.
The facilities did not look like on the photographs submitted by the Government.
According to the representative, she had shown those photographs to the applicants and they were surprised to see them alleging that they did not depict the conditions in which they were placed.
They also argued that the quality of food in the centre was poor.
They were visited by a psychologist who could not help them in any meaningful way because there was no translator.
The applicants are still in the Tovarnik detention centre.
D. The request for interim measures under Rule 39 of the Rules of Court 15.
Since the applicants’ arrival to Croatia their representative, Ms Sanja Bezbradica Jelavić, was trying to contact them but was denied access to them on the grounds that the power of attorney signed by the first and second applicants in December 2017 was not valid.
The Centar za mirovne studije NGO was also denied access to the applicants on security reasons.
Currently a criminal investigation is pending as to the circumstances of the applicants’ signing the power of attorney to Ms Bezbradica Jelavić in December 2017.
On 4 April 2018 Ms Bezbradica Jelavić submitted a request under Rule 39 of the Rules of Court, asking the Court to allow her to contact the applicants, to order their release from the Tovarnik detention centre and to prevent their removal to Serbia.
On 6 April 2018 the Court (the duty judge) temporarily granted an interim measure until 27 April 2018, indicating to the Government to place the applicants “in such an environment, which complies with the requirements of Article 3 of the Convention, taking into account the presence of minors (see especially Popov v. France, nos.
39472/07 and 39474/07, 19 January 2012)”.
It adjourned the Rule 39 decision in respect of the applicants’ complaints concerning the lack of access to their lawyer and the risk they would face if expelled to Serbia and requested further factual information from the parties.
After receiving the requested factual information from both the Government and the applicants’ representative the issue of the applicants’ legal representation was still not resolved.
Even though Ms Bezbradica Jelavić had a power of attorney to represent the applicants, the domestic authorities neither allowed her to directly contact them, nor informed them of all the initiatives undertaken by her to represent them.
In order to clarify the matter, on 25 April 2018, the Court (the duty judge) asked further information from the Government.
At the same time, the Rule 39 measure relating to the applicants’ placement in an Article 3 compliant environment was prolonged until 11 May 2018.
On 4 May 2018 the Government informed the Court that the Croatian Child Ombudsman, Ms Helenca Pirnat Dragičević, an independent and impartial human rights officer, had visited the applicants on 2 May 2018 in order to ascertain the circumstances of their legal representation and the case pending before the Court.
The applicants had confirmed to the Ombudsman that they were familiar with the fact that Ms Bezbradica Jelavić had instituted proceedings before the Court on their behalf, and that they wished to be represented by her.
They had also expressed a wish to meet her.
On 7 May 2018 Ms Bezbradica Jelavić met the applicants in the Tovarnik detention centre and the three of the applicants (the adults) signed a new power of attorney for her.
However, she alleges that she is still not allowed to communicate with the applicants without being monitored by the police.
In particular, when she contacted the fourth applicant through a fixed telephone line in the Tovarnik detention centre on 9 May 2018, a police officer refused to leave the room.
On 11 May 2018 the Court (the duty judge) prolonged the interim measure concerning the applicants’ placement until further notice.
Moreover, the duty judge refused the Rule 39 request as regards the issue of the applicants’ legal representation as well as the Rule 39 request concerning the risk they would face if expelled to Serbia since it was premature.
The applicants complain that the conditions of their placement in the Tovarnik detention centre do not comply with the requirements of Article 3 of the Convention, in particular having regard to the fact that they are a family with eleven minor children.
They further complain, under Article 5 § 1 (f) of the Convention, that their placement in the Tovarnik detention centre amounts to detention for which there is no legal basis and which is in any event disproportionate to any legitimate aim.
Under Article 8 of the Convention they complain that their placement in the Tovarnik detention centre seriously hinders their private and family life.
They further complain that the repeated removals from the Croatian territory and return to Serbia in a summary manner without an objective and reasonable examination of their individual case were in breach of Article 4 of Protocol No.
Relying on Article 14 of the Convention in conjunction with Articles 3, 5 and 8 of the Convention and Article 4 of Protocol No.
4 and Article 1 of Protocol No.
12, they complain about being discriminated against on the basis of their status as asylum seekers.
They also complain that the Government’s failure to comply with the interim measure “to place the applicants in such an environment, which complies with the requirements of Article 3 of the Convention, taking into account the presence of minors (see especially Popov v. France, nos.
39472/07 and 39474/07, 19 January 2012)” amounts to a breach of Article 34 of the Convention.
They finally complain that by restricting their contact with their lawyer, monitoring their conversations and putting pressure on their lawyer by conducting a criminal investigation regarding the power of attorney they had signed to her, the authorities are hindering the effective exercise of their right to an individual application, as guaranteed under Article 34 of the Convention.
CASE OF TRUCHANOVIČ AND OTHERS v. LITHUANIA
(Applications nos. 15708/10 and 3 others)
4 February 2020
This judgment is final but it may be subject to editorial revision. In the case of Truchanovič and Others v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Ivana Jelić, President,Egidijus Kūris,Darian Pavli, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 14 January 2020,
Delivers the following judgment, which was adopted on that date:
1. The case originated in four applications (nos. 15708/10, 15874/10, 25117/10 and 28380/10) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eight Lithuanian nationals, Mr Ježi Truchanovič (“the first applicant”), Mr Marjan Truchanovič (“the second applicant”), Ms Marija Butkevič (“the third applicant”), Ms Vaclava Sniežko (“the fourth applicant”), Ms Leokadija Pavlova (“the fifth applicant”), Ms Jelena Dvarionienė (“the sixth applicant”), Ms Marija Narkevič (“the seventh applicant”) and Ms Genoefa Stankevič (“the eighth applicant”) on 10 March 2010 (the first, second and third applicants), 2 March 2010 (the fourth and fifth applicants), 21 April 2010 (the sixth and seventh applicants) and 27 April 2010 (the eighth applicant). 2. In a judgment delivered on 18 December 2018 (“the principal judgment”), the Court declared that the second, third and seventh applicants’ legal heirs had standing to continue the proceedings in those applicants’ stead (Truchanovič and Others v. Lithuania [Committee], nos. 15708/10 and 3 others, § 29 and point 2 of the operative provisions, 18 December 2018). It held that there had been a violation of Article 1 of Protocol No. 1 to the Convention in respect of all eight applicants, in view of the excessive length of the restitution process and the fact that their property rights had still not been fully restored (ibid., § 44 and point 4 of the operative provisions). 3. The applicants sought just satisfaction under Article 41 of the Convention. The Court awarded them the following amounts (plus any tax chargeable) in respect of non-pecuniary damage: 3,000 euros (EUR) to the first applicant, the second applicant’s heirs and the third applicant’s heirs jointly; EUR 5,000 to the fourth and fifth applicants jointly; EUR 5,000 to the sixth applicant and the seventh applicant’s heir jointly; and EUR 6,500 to the eighth applicant. The Court dismissed the remainder of the applicants’ claims as regards the non-pecuniary damage. 4. The Court considered that the question of the application of Article 41 of the Convention was not ready for decision as regards pecuniary damage. It therefore reserved that question and invited the Government and the applicants to submit, within six months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 51 and point 6 of the operative provisions). 5. The applicants and the Government failed to reach an agreement and submitted observations concerning the question of pecuniary damage. THE LAW
6. The Court notes at the outset that the eighth applicant died on 30 April 2018. Her legal heir, Mr Česlovas Aranauskas, took over her claims before the domestic authorities and submitted observations to the Court on her behalf. In such circumstances, the Court finds that the eighth applicant’s heir is entitled to pursue the application on her behalf (see, among other authorities, Sargsyan v. Azerbaijan (dec.) [GC], no. 40167/06, § 51, 14 December 2011, and the case-law cited therein). 7. The first applicant and the second and third applicants’ legal heirs (see paragraph 2 above) did not submit any observations. 8. The Government submitted that steps had been taken at the domestic level in order to fully restore those applicants’ property rights. In October 2018 they had been included in a list of candidates to receive land near Vilnius, and in December 2018 the applicants or their heirs had chosen several plots of equal value to the land previously held, which would be given to them at a later stage. 9. In the present case, the Court considers that the first applicant and the second and third applicants’ legal heirs do not intend to pursue their application (Article 37 § 1 (a)). Moreover, in view of the Government’s submissions (see paragraph 8 above), it is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the case as regards the reserved Article 41 procedure (Article 37 § 1 in fine). 10. Accordingly, the Court considers it appropriate to strike the remainder of the case concerning the first, second and third applicants out of the list. 11. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
12. In December 2018 the seventh applicant’s heir participated in a meeting of candidates to receive land in several areas near Vilnius, and chose a plot of 0.25 hectares. 13. In May 2019 the National Land Service (hereinafter “the NLS”) restored the eighth applicant’s property rights by giving her 0.0232 hectares of land. The decision stated that her property rights to the remaining 0.4949 hectares would be restored later. 14. In May 2019 the fourth, fifth and sixth applicants and the eighth applicant’s heir received letters from the NLS, informing them that there was not enough land in the areas in which their previous plots had been located. As a result, the applicants’ property rights could be restored either by providing them with land, located in different areas, which was of equal value to the previously held plots, or by monetary compensation. In June 2019 the applicants informed the NLS that they wished to receive land of equal value to their previous plots. 15. At the date of the latest information provided to the Court (17 September 2019), the remainder of the applicants’ property rights had not been restored. (a) The applicants
16. The fourth and fifth applicants claimed EUR 24,000 jointly for the land which had not been returned to them. 17. The sixth applicant and the seventh applicant’s heir claimed EUR 22,866 jointly for the land which had not been returned to them. 18. The eighth applicant’s heir claimed EUR 12,594 for the land which had not been returned to him. 19. All the applicants submitted that the aforementioned amounts corresponded to the value of the land which had been taken away from them, established by the Centre of Registers. They stated that if they were awarded those amounts, they would withdraw any further claims before the domestic authorities. (b) The Government
20. The Government firstly submitted that the most appropriate form of satisfaction would be the restoration of the applicants’ property rights in kind in domestic proceedings. However, they acknowledged that, in view of the lack of available land in the relevant areas, it was not clear how long any further restitution process might take. 21. The Government did not dispute that the applicants had sustained the damage which they had claimed, as their claims were based on the value of the land which had been taken away from them and not returned, as established by the Centre of Registers (see paragraphs 16-19 above). At the same time, the Government pointed out that the applicants were still entitled to have their property rights restored by means of monetary compensation in the domestic restitution proceedings and that to date, they had not withdrawn their claims in those proceedings. It was therefore important to avoid any unjust enrichment. 22. Lastly, the Government drew the Court’s attention to the fact that, under Lithuanian law, restoration of property rights by means of monetary compensation and awards in respect of pecuniary damage were made by different State institutions from different budgetary funds. They asked the Court to take the domestic administrative peculiarities into account when making its award. 23. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 19, ECHR 2001-I). 24. It also reiterates that, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 119, ECHR 2006‐II, and Andrejeva v. Latvia [GC], no. 55707/00, § 110, ECHR 2009). 25. In the principal judgment the Court found a violation of Article 1 of Protocol No. 1 to the Convention on account of the fact that the applicants’ property rights had not been restored with regard to the following plots (see §§ 26 and 44 of the principal judgment):
- the fourth and fifth applicants – 0.52 hectares;
- the sixth and seventh applicants – 1.22 hectares;
- the eighth applicant – 0.5181 hectares. 26. The Court notes that to date, the applicants’ property rights have been restored only in part (see paragraphs 12-15 above). The documents submitted to it by the parties indicate that in view of the lack of available land in relevant areas, any further domestic restitution process is likely to take a long time and entail further uncertainty for the applicants. In such circumstances, the Court considers that the applicants should be awarded compensation for the pecuniary damage sustained. 27. The applicants claimed pecuniary damage corresponding to the value of the land which had been taken away from them and not restored to date, as established by the Centre of Registers. The Government did not dispute the fact that the applicants had sustained pecuniary damage or the accuracy of the amounts claimed. Taking into account the parties’ submissions and the documents in its possession, the Court awards the applicants the following amounts in respect of pecuniary damage:
- EUR 24,000 jointly to the fourth and fifth applicants;
- EUR 22,866 jointly to the sixth applicant and the seventh applicant’s heir;
- EUR 12,594 to the eighth applicant’s heir. 28. The Court reiterates that if the applicants bring any related claims before the domestic authorities, the latter will be entitled to take into account the awards made by the Court in this judgment (see Gladysheva v. Russia, no. 7097/10, § 104, 6 December 2011, and Nekvedavičius v. Lithuania (just satisfaction), no. 1471/05, § 23, 17 November 2015). 29. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, within three months, the following amounts in respect of pecuniary damage:
(i) EUR 24,000 (twenty-four thousand euros), plus any tax that may be chargeable, to the fourth and fifth applicants jointly;
(ii) EUR 22,866 (twenty-two thousand eight hundred and sixty-six euros), plus any tax that may be chargeable, to the sixth applicant and to the seventh applicant’s heir jointly;
(iii) EUR 12,594 (twelve thousand five hundred and ninety-four euros), plus any tax that may be chargeable, to the eighth applicant’s heir;
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
Done in English, and notified in writing on 4 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Ivana JelićDeputy RegistrarPresident