On the 8th of December ASGI submitted its third party intervention in support to the S.B. and others vs Croatia case pending in front of the European Court of Human Rights with regards to episodes of push-backs that took place at the border between Bosnia Herzegovina and Croatia in October 2018.
In the month of October 2018, in the midst of a humanitarian crisis due to the weaknesses in Bosnia and Herzegovina’s reception and asylum system, on various occasions three Syrian citizens – one of whom is a minor – attempted to illegally cross the Croatian border together with other people. Their hopes of reaching the European Union territory were dashed while crossing the first EU external border: Croatian police stopped the involved people and forced them – through the use of extreme violence measures – to return to Bosnia without ensuring their right to express the intention to apply for international protection and without obtaining an individual assessment of their situation. After repeated attempts, they managed to entry the EU territory. Supported by the European Center for Constitutional and Human Rights (ECCHR), they decided to bring an action before the European Court of Human Rights (ECtHR) in order to plead breach of various fundamental rights set out in the European Convention on Human Rights (ECHR) (S.B. v. Croatia – A.A. v. Croatia – A.B. v. Croatia). In particular, the appeal outlined different claims of unlawfulness: missing evaluation of the risks to which applicants have been exposed due to being returned to Bosnia, deriving from the reception conditions and obstacles in accessing the asylum procedure (art. 3, ECHR), the collective expulsion without individual assessment (art.4, protocol 4, ECHR) and without ensuring access to court proceedings and legal remedies (art. 13 ECHR). Following a specific request, ASGI was admitted to submit a third-party intervention in support of the applicants (art. 44, paragraph 3a of the Rules of the European Court of Human Rights). ASGI’s intervention focused on two main violations: violation of article 3 of the ECHR (prohibition of inhuman and degrading treatment) as a result of the refoulement in relation with the failure to assess reception conditions in Bosnia and the well-known difficulties in accessing the international protection. In addition, ASGI claimed a violation of articles 3, 13 and 4 of the protocol 4 ECHR, with regards to the Croatian police authorities’ behavior and practice of destroying personal effects and forcing migrants to strip naked. Such practices have been considered as treatments compatible with forms of torture. Furthermore it jeopardized the possibilities for appeal and the evidence collection relating to what took place during the refoulement phase.
As regards the first violation, the analysis focuses on the actual conditions characterizing the Bosnian reception system: a system in trouble, even at the time of the pending cases (2018), which has to be considered completely unsuitable for protecting the safety and dignity of the received people. The intervention describes the chronic system inadequacy, underlining the general weaknesses of the system, in particular with regard to the protection of unaccompanied foreign minors. The intervention furthermore analyzed the difficulties in accessing the procedures for international protection. In fact, the Bosnian system is set up in such a way that the registration of the international protection application depends on the availability of a recognized domicile. This requirement excluded (and currently excludes) a considerable group of asylum seekers present in the Una Sana canton, also due to the fact that many official centers were not considered suitable places for the purpose of issuing a certificate of domicile to be used to submit the application. The systemic shortage of places in reception facilities, the wide spread of informal shelter solutions and the federal regulatory fragmentation have de facto prevented the access to protection. The criticality of such situation (as attested by various reports attached to the third intervention) could not be ignored by Croatian authorities for refoulement purposes, even more so when referring to unaccompanied foreign minors. The two field inspections conducted by some members of ASGI in October 2019 and January 2020 in Bosnia as well as the cooperation with IPSIA ACLI and Border Violence Monitoring Network have proved to be fundamental for the purposes of this in-depth analysis.
Furthermore, the intervention argues a violation of article 3 ECHR referred to the behavior of the Croatian authorities in carrying out the refoulement procedures. Several international reports highlight the widespread practice adopted by Croatian authorities consisting in destroying personal effects (mobile phones, documents, passports, chargers) and forcing people to strip naked by burning clothes and shoes. The Border Violence Monitoring Network has collected numerous testimonies confirming these behaviors. It is evident that such conducts, implemented in a phase that is emotionally delicate for a foreign citizen, are necessarily perceived as humiliating and disrespectful with regards to the dignity of involved people, also because they are put into practice with the sole purpose of creating suffering and emotional distress. Furthermore, these conducts negatively affect the possibility of accessing an effective remedy. In addition to the authorities’ systematic lack of measures, the destruction of other documents and the mobile-phone seizure significantly reduce the possibilities of demonstrating the presence of the involved people in the places from where they have been removed, the possibility of producing evidence (video or photos) and, once the expulsion has taken place, the possibility of getting in touch with subjects who can take action to assert their rights. In this sense, the violation of art. 13 of the ECHR certainly seems conceivable. Lastly, the intervention argues a violation of article 4, protocol 4 of the ECHR on the basis of the numerous documents produced by various international organizations, highlighting how the practice of destroying personal property and documents is indicative of the collective expulsion since this conduct limits the risk that, considering the large number of people involved, someone could preserve items of evidence or create new ones in a more chaotic and less controlled operation.