I correctly predicted that there was a violation of human rights in M.H. AND OTHERS v. CROATIA.
Information
- Judgment date: 2019-06-27
- Communication date: 2018-05-11
- Application number(s): 15670/18
- Country: HRV
- Relevant ECHR article(s): 3
- Conclusion:
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.564645
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
1.
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.
2.
The facts of the case, as so far submitted by the parties, may be summarised as follows.
A.
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.
4.
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.
5.
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.
7.
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.
8.
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.
10.
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.
11.
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.
12.
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.
14.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
COMPLAINTS 24.
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.
25.
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.
26.
Under Article 8 of the Convention they complain that their placement in the Tovarnik detention centre seriously hinders their private and family life.
27.
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.
4.
28.
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.
29.
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.
30.
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.
Judgment
THIRD SECTIONCASE OF TSEBOYEV AND OTHERS v. RUSSIA
(Applications nos. 32041/17 and 7 others -
see appended list)
JUDGMENT
STRASBOURG
27 June 2019
This judgment is final but it may be subject to editorial revision. In the case of Tseboyev and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,Dmitry Dedov,Gilberto Felici, judges,and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 6 June 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. Notice of the applications was given to the Russian Government (“the Government”). THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. THE LAW
I. JOINDER OF THE APPLICATIONS
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
6. The applicants complained that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which reads as follows:
Article 5 § 3
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‐XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‐X, with further references). 8. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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. Regard being had to the documents in its possession and to its case‐law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table. 13. 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,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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 27 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAlena PoláčkováActing Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
No. Application no. Date of introduction
Applicant’s name
Date of birth
Representative’s name and location
Period of detention
Court which issued detention order/examined appeal
Length of detention
Specific defects
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[i]
32041/17
06/04/2017
Alan Vladislavovich Tseboyev
26/09/1976
01/03/2012
pending
Supreme Court of the Komi Republic
More than 7 year(s) and 1 month(s) and
4 day(s)
collective detention orders;
failure to conduct the proceedings with due diligence during the period of detention;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed
9,400
60787/17
18/07/2017
Ruzil Rimovich Davletshin
02/09/1988
15/10/2014 to
08/12/2017
Military Court of the Privolzhye Circuit
3 year(s) and
1 month(s) and
24 day(s)
collective detention orders;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention
4,200
2840/18
30/11/2017
Vladimir Aleksandrovich Rashchupkin
06/01/1978
06/12/2012 to
27/12/2017
Korolyev Town Court;
Moscow Regional Court
5 year(s) and
22 day(s)
collective detention orders;
failure to conduct the proceedings with due diligence during the period of detention;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed
6,600
2956/18
27/11/2017
Leonid Vladimirovich Lobkov
30/03/1961
28/11/2016 to
09/04/2018
Syktyvkar Town Court;
Supreme Court of the Komi Republic
1 year(s) and
4 month(s) and
13 day(s)
fragility of the reasons employed by the courts;
use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;
failure to examine the possibility of applying other measures of restraint;
2,000
3704/18
03/01/2018
Yekaterina Vladimirovna Fedorova
11/10/1972
03/08/2016
pending
Oktyabrskiy District Court of Lipetsk;
Lipetsk Regional Court
More than 2 year(s) and 8 month(s) and
2 day(s)
collective detention orders;
use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention;
3,800
5662/18
03/01/2018
Mikhail Vladimirovich Maslov
16/08/1978
08/07/2015
pending
Oktyabrskiy District Court of Lipetsk;
Lipetsk Regional Court
More than 3 year(s) and 8 month(s) and
28 day(s)
collective detention orders;
use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention;
failure to examine the possibility of applying other measures of restraint;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;
5,100
21234/18
24/04/2018
Vitaliy Aleksandrovich Prishibskiy
21/11/1991
Shukhardin Valeriy Vladimirovich
Moscow
19/11/2017 to
09/07/2018
Sovetskiy District Court of Orsk;
Orenburg Regional Court
7 month(s) and
21 day(s)
fragility of the reasons employed by the courts;
use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;
failure to examine the possibility of applying other measures of restraint;
1,300
21283/18
21/04/2018
Magomed Ortsovich Batazhev
22/06/1981
Geroyev Akhmed Daudovich
Moscow
30/03/2016
pending
Tverskoy District Court of Moscow; Presnenskyy District Court of Moscow; Moscow City Court
More than 3 year(s) and 6 day(s)
collective detention orders;
failure to examine the possibility of applying other measures of restraint as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention;
4,000
No. Application no. Date of introduction
Applicant’s name
Date of birth
Representative’s name and location
Period of detention
Court which issued detention order/examined appeal
Length of detention
Specific defects
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[i]
32041/17
06/04/2017
Alan Vladislavovich Tseboyev
26/09/1976
01/03/2012
pending
Supreme Court of the Komi Republic
More than 7 year(s) and 1 month(s) and
4 day(s)
collective detention orders;
failure to conduct the proceedings with due diligence during the period of detention;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed
9,400
60787/17
18/07/2017
Ruzil Rimovich Davletshin
02/09/1988
15/10/2014 to
08/12/2017
Military Court of the Privolzhye Circuit
3 year(s) and
1 month(s) and
24 day(s)
collective detention orders;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention
4,200
2840/18
30/11/2017
Vladimir Aleksandrovich Rashchupkin
06/01/1978
06/12/2012 to
27/12/2017
Korolyev Town Court;
Moscow Regional Court
5 year(s) and
22 day(s)
collective detention orders;
failure to conduct the proceedings with due diligence during the period of detention;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed
6,600
2956/18
27/11/2017
Leonid Vladimirovich Lobkov
30/03/1961
28/11/2016 to
09/04/2018
Syktyvkar Town Court;
Supreme Court of the Komi Republic
1 year(s) and
4 month(s) and
13 day(s)
fragility of the reasons employed by the courts;
use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;
failure to examine the possibility of applying other measures of restraint;
2,000
3704/18
03/01/2018
Yekaterina Vladimirovna Fedorova
11/10/1972
03/08/2016
pending
Oktyabrskiy District Court of Lipetsk;
Lipetsk Regional Court
More than 2 year(s) and 8 month(s) and
2 day(s)
collective detention orders;
use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention;
3,800
5662/18
03/01/2018
Mikhail Vladimirovich Maslov
16/08/1978
08/07/2015
pending
Oktyabrskiy District Court of Lipetsk;
Lipetsk Regional Court
More than 3 year(s) and 8 month(s) and
28 day(s)
collective detention orders;
use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention;
failure to examine the possibility of applying other measures of restraint;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;
5,100
21234/18
24/04/2018
Vitaliy Aleksandrovich Prishibskiy
21/11/1991
Shukhardin Valeriy Vladimirovich
Moscow
19/11/2017 to
09/07/2018
Sovetskiy District Court of Orsk;
Orenburg Regional Court
7 month(s) and
21 day(s)
fragility of the reasons employed by the courts;
use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;
failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;
failure to examine the possibility of applying other measures of restraint;
1,300
21283/18
21/04/2018
Magomed Ortsovich Batazhev
22/06/1981
Geroyev Akhmed Daudovich
Moscow
30/03/2016
pending
Tverskoy District Court of Moscow; Presnenskyy District Court of Moscow; Moscow City Court
More than 3 year(s) and 6 day(s)
collective detention orders;
failure to examine the possibility of applying other measures of restraint as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention;
4,000
[i]. Plus any tax that may be chargeable to the applicants.