Communicated on 11 May 2018

FIRST SECTION

Application no. 15670/18 M.H. and Others against Croatia lodged on 16 April 2018

STATEMENT OF FACTS

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 wh om are applicants in this case) entered Croatia from Serbia when the y 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 request s 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. The y were not served with the decision and did not pursue legal remedies against it.

7 . On 28 March 2018 the Ministry of the Inter ior ( 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 sociali s ing, 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 ha s a capacity to receive 600 people, and currently there are 336 people, most of them male adults. The Kutina centre ha s the capacity to receive 100 persons, and currently there ar e 51 people there. In both centres there was a large fluctuation of people, which ma de them less suitable for small children. The Government deem ed that the applicants ’ stay in the Tovarnik detention centre complie d 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 claim ed 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 r epresentative , Ms Sanja Bezbradica Jelavić , was trying to contact the m but was denied access to them on the grounds that the power of attorney sign ed 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 c entre and to prevent th eir 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. E ven 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 p olice. In particular, when she c ontacted 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 Ma y 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 Conventi on in conjunction with Articles 3, 5 and 8 of the Convention and Article 4 of Protocol No. 4 a n d Article 1 of Protocol No. 12, they complain about being discriminated agains t 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.

QUESTIONS

1. Do the conditions of the applicants ’ placement in the Tovarnik detention centre amount to inhuman or degrading treatment contrary to Article 3 of the Convention, in particular having regard to the fact that the fourth to fourteenth applicants are minors?

2. Were the applicants deprived of their l iberty in breach of Article 5 § 1 (f) of the Convention?

3. Is the applicants ’ placement in the Tovarnik detention centre in breach of their right to respect for their private and/or family life, guaranteed by Article 8 of the Convention?

4. Have the applicants been subjected to a collective expulsion without any individual assessment of their circumstances, in breach of Article 4 of Protocol No. 4?

5. Have the applicants been discriminated against on the basis of their status as asylum seekers, in breach of Article 14 of the Convention in conjunction with Articles 3, 5 and 8 of the Convention , Article 4 of Protocol No. 4 and/ or Article 1 of Protocol No. 12?

6. Has the failure to comply with the interim measure indicated to the Government under Rule 39 of the Rules of Court “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)” been in breach of Article 34 of the Convention?

7. Have the authorities, by restricting the applicants ’ access to their lawyer and conducting a criminal investigation as regards the power of attorney they had signed as well as by interfering with the applicants ’ communication with their lawyer, hindered the effective exercise of their right to an individual application under Article 34 of the Convention?