This has been reported not only by numerous Croatian and international organizations and warned about by the Croatian Ombudswoman, but also in 2019 testified by Croatian police officers who received and were forced to carry out illegal orders from their superiors - due to the lack of an adequate reporting system they asked for protection from the Ombudswoman. On a monthly basis, organizations in Bosnia and Herzegovina and Serbia report on thousands of people who have been illegally expelled in this way, and Border Violence Monitoring Network diligently records victims' testimonies, giving them a voice.

Centre for Peace Studies (Croatian acronym: CMS) has been actively involved in protecting the rights of refugees and other migrants since the very beginning of the humanitarian and political crisis in 2015. One of the activities carried out by CMS includes providing legal aid. In cases of illegal expulsions victims in practice have limited access to remedies for several reasons: lack of familiarity with the legal system in the Republic of Croatia, language barrier and the fact they had been expelled outside of the Croatian territory. Most importantly, in the case of illegal expulsion persons have no access to an effective remedy according to the standards established by the case law of the European Court of Human Rights. This case law states that in the context of collective expulsions and related torture, even if criminal proceedings were accessible after the expulsion itself, this is not sufficient to meet the criteria for the effectiveness of a remedy. On the contrary, in order for a remedy to be effective in these cases, it must necessarily have a suspensive effect - that is, the person has to have the possibility to use the remedy before they are expelled from the country. Given that the above-mentioned illegal expulsions from Croatia take place outside the scope of any legally prescribed procedure, there is no remedy which a person could use to prevent police officers, under whose control the person is, from illegally expelling them.

Moreover, even when persons initiate criminal proceedings for violation of their rights after the infringements have been committed, we are not aware of any proceedings that would be considered as an effective investigation according to the established criteria. Although there have been numerous allegations of torture and violence and, to our knowledge, at least 18 criminal complaints for illegal expulsion and/or violence against refugees and other migrants - no indictments were brought and, accordingly, no perpetrators of reported crimes were identified, prosecuted or sanctioned in any of the reported cases. 

We also refer to the Report of the Domestic Policy and National Security Committee from the discussion on the refusal of international protection in the Republic of Croatia dated 1 March 2018, which includes the Ombudswoman's assessment of the ineffectiveness of investigations:

“She emphasized that they began receiving first complaints about the return of migrants without implementing an individualized approach at the end of 2016 (...) She pointed out that her Office initiated proceedings and that, based on the complaints received, they were in constant communication with the Ministry of the Interior. According to the available information, the investigations of the Ministry of the Interior into these alleged events were reduced to the final conclusion that the events were not documented in the police records. Since the Ministry of the Interior does not usually keep records of such actions, she said that consequently they were not even able to conduct an effective investigation. After some time, it came to her attention that these cases were investigated within the General Police Directorate, about which her Office did not receive concrete information, and she asked why such an investigation was not conducted by the Internal Control Services. She considers it is indicative that her Office was not able to get the footage of thermal imaging cameras for disputed situations in which there was alleged violence, under the justification that the footage did not exist for the specified time period.”

Furthermore, both the criminal complaints related to illegal expulsions filed by CMS and the proceedings to which CMS had access show that no actions necessary under international and national law to identify the perpetrators were taken, the proceedings were generally unreasonably long and they were not carried out with due diligence – hence the criteria for an effective investigation were not met. We stress that in cases involving victims and witnesses who are refugees and other migrants, use of expedited procedures is crucial due to frequent changes in their location in search of protection - with the passage of time it becomes increasingly difficult to identify and locate victims. Hereafter, CMS presents an analysis of the proceedings pursuant to filed criminal complaints to the extent permitted by law.

 

1.K-US-194/2018

The criminal proceedings refer to an extremely tragic case in which Croatian police officers denied access to the asylum system to an Afghan family and then illegally expelled them from the territory of the Republic of Croatia, which resulted in the death of six-year-old Madina Hussiny (Hussainkhel; Hassiny). All remedies available in the Republic of Croatia have been exhausted and the case has been presented before the European Court of Human Rights (15670/18 and 43115/18).

According to the dissenting opinion of three constitutional judges with the Constitutional Court ruling U-IIIBi-1385/2018 dated 18 December 2018, the investigation of this case was "a procedural formalism in the approach of the competent judicial investigative bodies". In the continuation of the mentioned dissenting opinion, they also assess that "the competent investigative bodies have not met even the basic threshold arising from the obligation under the Constitution or the Convention to conduct an effective investigation in cases where fundamental rights of citizens such as the right to life or humane treatment have been denied.” This opinion of the judges of the Constitutional Court analyses a number of contradictions and inconsistencies in the supporting evidence, material omissions in the collection of evidence, indicates insufficient reasoning and insufficient statement of facts based on several points - therefore, it points to a lack of due diligence and ineffectiveness of the investigation. 

In connection to this, the Office of the Ombudswoman also called into question the effectiveness of the investigation and stated the unlawfulness in the conduct and the lack of due cooperation with her Office, which in this case initiated the proceedings. The issue of withholding evidence was also raised, in the notice of the Office of the Ombudswoman pointing out the following: "Also, in the case of the death of little Madina Hussiny, the footage of the thermal imaging cameras were not available to the Ombudswoman, given that the Ministry of the Interior claimed that they had not been saved.”

2.KN-US-14/18

The case concerns criminal complaint filed by the Centre for Peace Studies on 18 December 2018, after Border Violence Monitoring published footage in which Croatian police officers exceeded their authority and expelled refugees in an organized, violent and illegal manner. The mentioned video footage has a total duration of 240 hours, indicates a total of 54 cases of mass expulsion on the green border between the Republic of Croatia and Bosnia and Herzegovina and shows 81 police officers in their treatment of refugees and other migrants, including children.

In connection to this criminal complaint, we also believe that the procedure was not conducted effectively according to the criteria for assessing the effectiveness of the procedure, which include requirements for an expedited procedure and for reasonable diligence, in addition to the fact that the requirement of investigator's independence was potentially compromised.

Firstly, more than two years elapsed from the date of filing the criminal complaint (18 December 2018) to the issuance of the Order on dismissal (31 December 2020). Within more than two years of the ongoing procedure, inquiries were carried out, which included obtaining relevant documentation and gathering information from a representative of the Centre for Peace Studies, police officers and the General Police Directorate. It is also important to state that the said information was requested from CMS more than a year and seven months from the date of filing the criminal complaint. From all the above, it is evident that the procedure was not extremely demanding and certainly does not justify the duration of more than two years. In addition, neither this procedure was conducted with reasonable diligence, given the fact that the central evidence was not examined by interviewing those who collected it, but also because the mentioned video footage includes numerous parts filmed at night where no action is visible, but gunshots can be heard. What is more, this conduct potentially failed to identify victims and establish whether they expressed an intention to seek asylum, which is an important element in determining the commission of criminal offences. In addition to the mentioned omission, four police officers out of 81 visible in the submitted video footage were questioned and suspected in the procedure, and the Order on dismissal is mostly based strictly on the testimonies of the suspects and their superiors. It follows from the foregoing that the requirement of "reasonable diligence" was not met in the respective procedure.

3.KR-US-601/19

This case concerns violent and illegal expulsion of a group of Iranian citizens from the territory of the Republic of Croatia.  As supporting evidence, in the criminal complaint CMS stated the names of the damaged parties and their addresses, photographs and medical documentation of the injuries and expert psychological opinion. The proceedings pursuant to this criminal complaint lasted at least a year and six months. In that time, according to the communication issued by the Croatian Bureau for Combating Corruption and Organised Crime (USKOK) in 2020, the General Police Directorate conducted inquiries and data from the Croatian Meteorological and Hydrological Service and official police records were collected. Based on these, it was concluded that the allegations were unfounded, and the case was closed. It is evident that the requirement of reasonable diligence was not met in the proceedings, as medical documentation and other attached evidence were not taken into account, testimonies of damaged parties and witnesses of criminal offences were not collected and neither were the statements of volunteers and representatives of the Centre for Peace Studies who were in contact with the victims. Finally, according to the communication, the inquiries were conducted by the General Police Directorate, which compromised the independence of the proceedings given that the Directorate is part of the hierarchical structure of criminal suspects listed in the respective criminal complaint. This is contrary to the criteria of the case law of the European Court of Human Rights for assessing the effectiveness of the investigation into the suspicion of violations of Article 3 ECHR, which require, inter alia, the independence of investigators in relation to persons involved in the events. The required independence must be complete, in law and in practice, and is not satisfied only by the absence of a hierarchical or institutional connection.

4.KPn-DO-1014/2020-10 i KN-DO-149/2017

In this case too, illegal expulsions of several groups of refugees and other migrants were reported. Although the criminal complaint was filed back in 2017, CMS was informed that it was remitted to the competent authority for action only on 18 December 2020. Inquiries are ongoing.

Also, in 2020, CMS filed four more criminal complaints, for which proceedings are under way.

Finally, all the above criminal complaints allege torture, inhuman treatment and illegal expulsion contrary to the principle of non-refoulement, i.e., violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, failure to conduct effective proceedings in these cases not only resulted in denied access to remedies and legal protection, but also violated the procedural aspect of Art. 3 of the ECHR, which impeded potential establishing of a substantive violation of Article 3 of the ECHR.