CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 novembre 2021

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display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3BF0B6C7 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s5F30CFE2 { width:53.94%; border-collapse:collapse } .s936538EA { width:14.38%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sF01C4171 { width:35.08%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sE1EBF4E7 { width:50.54%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sFB8DA417 { width:14.38%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s621BE62C { width:35.08%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s86A9AD6A { width:50.54%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt }   FIRST SECTION CASE OF M.H. AND OTHERS v. CROATIA (Applications nos. 15670/18 and 43115/18)   JUDGMENT   Art 2 (procedural) • Ineffective investigation into child’s death after alleged denial of opportunity to seek asylum and order made by Croatian police to return to Serbia following train tracks Art 3 (substantive) • Degrading treatment • Child applicants kept in immigration centre with prison-type elements for more than two months in material conditions adequate for the adult applicants Art 5 § 1 • Lawful detention • Failure to demonstrate required assessment, vigilance and expedition in proceedings in order to limit family detention as far as possible Art 34 • Effective exercise of individual application hindered through restriction of contact with chosen lawyer, and pressure placed on lawyer aimed at discouraging pursuit of case Art 4 P4 • Collective expulsion • Summary return of parent and six children by Croatian police outside official border crossing and without prior notification of Serbian authorities   STRASBOURG 18 November 2021   FINAL   04/04/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.H. and Others v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Péter Paczolay, President ,   Ksenija Turković,   Krzysztof Wojtyczek,   Alena Poláčková,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato, judges ,   and Liv Tigerstedt, Deputy Section Registrar , Having regard to: the applications (nos.   15670/18 and 43115/18) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fourteen Afghan nationals, Ms M.H. (“the first applicant”), Mr R.H. (“the second applicant”), Ms F.H. (“the third applicant”), Ms N.H. (“the fourth applicant”) and ten other applicants, whose details are given in the appendix; the decision to give notice to the Croatian Government (“the Government”) of the complaints under Article 2, Article   3, Article   5 §§ 1 and 4, Article   8, Article   14 and Article   34 of the Convention, Article 4 of Protocol No. 4 and Article 1 of Protocol No. 12, and to declare the remainder of the applications inadmissible; the decision not to have the applicants’ names disclosed (Rule 47 § 4 of the Rules of Court); the decision to give priority to the applications (Rule 41); the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the parties’ further observations in the light of the Court’s judgment in N.D. and N.T. v. Spain ([GC], nos. 8675/15 and 8697/15, 13   February 2020); the comments submitted by the Hungarian Helsinki Committee, the Centre for Peace Studies, the Belgrade Centre for Human Rights, Rigardu e.V. and the Asylum Protection Center, who were granted leave to intervene by the President of the Section; Having deliberated in private on 6 July 2021 and 12 October 2021, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The case concerns the death of a six-year-old Afghan child, MAD.H., near the Croatian-Serbian border, the lawfulness and conditions of the applicants’ placement in a transit immigration centre, the applicants’ alleged summary removals from Croatian territory, and the respondent State’s alleged hindrance of the effective exercise of the applicants’ right of individual application. THE FACTS 2.     The applicants, who had been granted legal aid, were represented by Ms S. Bezbradica Jelavić, a lawyer practising in Zagreb. 3.     The Government were represented by their Agent, Ms S. Stažnik. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 5.     The applicants are an Afghan family of fourteen. The second applicant is the father of the family. The first and third applicants are his wives. The remaining applicants are the children of the first and second applicants, and of the second and third applicants. Their details are set out in the appendix. 6.     According to the applicants, in 2016 they left their home country, Afghanistan. Before coming to Croatia, they travelled through Pakistan, Iran, Turkey, Bulgaria and Serbia. Events of 21 November 2017 7 .     According to the applicants, on 21 November 2017 the first applicant and her six children (the ninth, tenth, twelfth, thirteenth and fourteenth applicants and MAD.H.) entered Croatia from Serbia together with one adult man named N. The other applicants remained in Serbia. The Croatian police officers approached the group while they were resting in a field. The group told the police officers that they wished to seek asylum, but the officers ignored their request, ordered them to get in the vehicle and took them to the border. At the border the police officers told them to go back to Serbia by following the train tracks. The group started walking and after several minutes a train passed and hit one of the children, MAD.H. The police officers with whom they had previously been talking took them to the Tovarnik railway station where a doctor established that MAD.H. had died. The group then returned to Serbia. 8.     According to the Government, at around 8 p.m. on 21 November 2017 the Croatian border police officers spotted a group of migrants with a thermographic camera while they were in Serbian territory, 300 metres from the Croatian-Serbian border. They were walking along the train tracks, using them as a guide for the direction to reach Croatia. The area was under constant surveillance owing to frequent attempts by migrants to illegally cross the border there. At that moment a train appeared, travelling from Croatia to Serbia. The police officers heard the train sounding its horn and braking. Shortly afterwards, a man and a woman came running to the border, carrying a child with visible head injuries. The police officers immediately called an ambulance and transported the woman and the child to the car park at Tovarnik railway station. The rest of the group stayed at the border without entering Croatia. The emergency medical team attempted to resuscitate the child, but at 9.10 p.m. the doctor established that she had died. The first applicant voluntarily returned to the border to the other members of the group and they all returned to Šid in Serbia. None of them sought asylum from the Croatian authorities. Criminal investigation into the death of MAD.H. 9.     MAD.H.’s death was heavily covered by the national and international media. 10 .     On 22 December 2017 the lawyer S. Bezbradica Jelavić (hereinafter “S.B.J.”) lodged a criminal complaint on behalf of the first and second applicants and five of the child applicants against unidentified Croatian border police officers, on charges of causing death by negligence, abuse of office and authority, torture and other cruel, inhuman and degrading treatment and breaching the rights of the child. The complaint stated that on the night of 21 November 2017, after encountering them on Croatian territory, the Croatian police officers had denied the first applicant and her six children any possibility of seeking asylum, and had ordered them to return to Serbia by following the train tracks, after which MAD.H. had been hit by a train and died. 11 .     On 30 January 2018 the police reported to the Vukovar County State Attorney’s Office that the recordings of the thermographic camera by means of which the applicants had been spotted could not be submitted because the storage system had been broken at the material time. They enclosed statements of police officers on duty on 21 November 2017 and of the doctor who had attempted to resuscitate the child. According to the report submitted on 22 November 2017 by police officers A., B. and C., at around 8 p.m. the previous day, while conducting surveillance of the Croatian-Serbian border by using a thermographic camera, they had spotted a group of persons some 300 metres inside Serbian territory. After about fifteen seconds they heard a train passing in the direction of Serbia, sounding its horn and braking. A man and a woman then came running to the border carrying a child with visible head injuries. The officers immediately called an ambulance. Officers A. and B. took the woman and the child by car to Tovarnik railway station, while officer C. and the other police officers who had arrived in the meantime stayed at the border with the rest of the group. On 16 January 2018 M.E., the doctor who had attempted to resuscitate MAD.H., stated that when she arrived at Tovarnik railway station at 8.36   p.m., there had been several police officers and a police van with several migrants inside. Next to the van was a man holding a child. 12 .     On 23 January 2018 the Croatian Ombudswoman ( Pučka pravobraniteljica Republike Hrvatske ) sent a letter to the State Attorney of the Republic of Croatia ( Glavni državni odvjetnik Republike Hrvatske ) informing him that she had conducted an inquiry into MAD.H.’s death. She noted that the applicants and the police officers had reported differently on the sequence of events and that there had been no thermographic camera recordings of the event, as had been the situation in previous cases in which she had sought to obtain such recordings. She suggested that the contact between the applicants and the police before the train had hit MAD.H. be established by inspecting the signals from their mobile telephones and the police car GPS (see paragraph 104 below). 13 .     On 9 February 2018 the Vukovar County State Attorney’s Office heard police officers B. and C. They stated that once the group of migrants had come within approximately 50 metres of the border, all three police officers came to the border and made signals to the group with lights and sirens, warning them not to cross it. Seeing their signals, the group had not entered Croatian territory; they had turned back, and soon afterwards the police officers had heard the train braking. They further stated that the thermographic camera by means of which they had spotted the applicants had no capacity to store content. The only camera with storage capacity was the one installed at Tovarnik railway station, controlled by police officer D. 14 .     On 9 February 2018 the train driver submitted that some 100 metres after entering Serbian territory, he had spotted a group of migrants walking along the train tracks in the direction of Šid. He had sounded the horn and braked, but one child had not moved from the tracks and the train had hit her. 15 .     On 16 February 2018 the Vukovar County State Attorney’s Office heard police officer D., who was monitoring the Croatian-Serbian border with two cameras on the date in question. Around 8 p.m. a colleague informed him that a train had stopped close to the tracks. He pointed his camera in that direction and saw a train in Serbian territory and two persons approaching the border. He did not know what exactly had happened because at that time he had not had the cameras directed towards that area. He submitted that both cameras had been broken for one year before the event, that they were still out of order, and that therefore it was not possible to view or download their recorded content. 16 .     On 31 March 2018 the investigating judge of the Vukovar County Court heard the first applicant. She submitted as in paragraph 7 above and added that her husband, the second applicant, had not been with them that night but had stayed in Serbia. On the same day the second applicant submitted that he had been with the group on the night in question when they had crossed the Croatian border and were returned by the Croatian police. On the same day the first and second applicants informed the investigating judge that they had signed a power of attorney in favour of the lawyer S.B.J., while they were in Serbia. 17 .     On 14 April 2018 S.B.J., on behalf of the applicants, asked the Vukovar County State Attorney’s Office about the progress of the investigation. She proposed investigating the “loss” of recordings by the thermographic cameras, which could have helped establish whether the applicants had entered Croatian territory. On 19 April 2018 the State Attorney’s Office refused to provide any information to the lawyer on the grounds that she had no valid power of attorney to represent the applicants. On 24 April 2018 S.B.J. submitted that her power of attorney was valid, and that on 31 March 2018 the first and second applicants had confirmed to the investigating judge that they had signed the power of attorney in her favour (see paragraph 16 above). 18 .     On 17 May 2018 the Vukovar Criminal Police forwarded to the Vukovar County State Attorney’s Office documents obtained from Interpol Belgrade in relation to the events of 21 November 2017. According to a note drawn up by the Serbian police on 22 November 2017 at 1.30 a.m., RA.H., the thirteenth applicant, submitted that on 21   November 2017 he and his family had entered Croatian territory. They had been walking for several hours when the police had stopped them, made them board a van, transported them to the border and told them to return to Serbia by following the train tracks. According to the documents concerning the on-site inspection, the train accident occurred some 200 metres from the border with Croatia. 19 .     On 1 June 2018 the Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminala – “the OSCOC”) rejected the applicants’ criminal complaint against police officers A., B. and C. The decision was served on S.B.J. as the applicants’ representative. The relevant part of the decision reads: “The information gathered indicated that on the critical occasion the suspects – the police officers of the Tovarnik border police station ... – were [on duty] at surveillance point no. 2 on the Tovarnik-Šid railway line. With the help of a manual thermographic camera – which, as transpires from the information gathered, did not have the technical facility for storing content – they spotted a group of persons by the train tracks in Serbian territory. The group did not enter Croatian territory, nor did the suspects have any direct contact with them prior to the train hitting the child MAD.H. ... In the present case, during the incident in question the suspects were conducting surveillance of the State border, which includes controlling and protecting the State border. The suspects were conducting those tasks in accordance with the law and international standards. Relying on the results of the proceedings, and having regard in particular to the statements of presumed witnesses – the police officers who were on duty on the critical occasion – who gave concurring statements, whereas the statements of the witnesses [the first, second and thirteenth applicants] differed as regards crucial facts and contradicted the other information gathered, it does not transpire that the suspects conducted actions in their service in respect of [the applicants] and the late MAD.H., or failed to conduct any due action, which would have had the consequence of violating any of their rights, that is to say of having had any consequences detrimental to the [applicants] and MAD.H. ...” 20 .     On 14 June 2018 the applicants took over the prosecution and asked the investigating judge of the Osijek County Court ( Županijski sud u Osijeku ) to conduct an investigation. They submitted that the OSCOC had not explained why their statements had been contradictory. They proposed obtaining recordings of the thermographic cameras, an expert report on their functioning, whether they had recorded the events of 21 November 2017 and whether their recorded content had been deleted, the GPS location of the suspects and the applicants, Croatian police instructions on practice in dealing with illegal migrants, and reports of national and international organisations on Croatian police practice vis-à-vis asylum-seekers. Lastly, they submitted that the Serbian authorities had established that the Croatian authorities had forcefully returned the first applicant and her children to Serbia on 21 November 2017 in breach of the readmission agreement between the two countries. 21 .     On 22 August 2018 the investigating judge dismissed the applicants’ request on the grounds that the allegations against the three police officers had not been supported by evidence. The evidence gathered showed that the group had never crossed the border and entered Croatia, talked to the Croatian police officers or sought asylum. The police officers had lawfully deterred the applicants from crossing the border by signalling to them with lights and lamps not to enter and their conduct had been unrelated to the train hitting the child. The first and second applicants’ statements had been contradictory as regards the relevant facts, since the second applicant had stated that he had been with the group at the material time, whereas according to the first applicant and the Serbian police reports, the second applicant had stayed in Serbia. 22 .     On 30 August 2018 the applicants lodged an appeal with the Osijek County Court appeal panel. 23.     Meanwhile, on 6 April 2018, they had lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), complaining, inter alia , of the lack of an effective investigation into the death of MAD.H. 24 .     On 18 December 2018 the Constitutional Court examined the complaint under the procedural limb of Article 2 of the Convention and found that the investigation into the death of MAD.H. had been effective. The competent authorities made inquiries into the applicants’ criminal complaint of December 2017, examined all possible leads and established that there was no reasonable suspicion that the Croatian police officers had committed criminal offences in respect of the applicants or the late MAD.H. The applicants’ criminal complaint had been rejected within the statutory time-limit, after which they had taken over the prosecution. The applicants had an effective remedy for their complaint concerning the alleged ineffectiveness of the investigation; they could have sought information from the competent State Attorney about the actions undertaken in relation to their criminal complaint, and they were also able to lodge a constitutional complaint, which was examined. 25 .     Three Constitutional Court judges appended a separate opinion to that decision, stating that the examination of the effectiveness of the investigation into the death of a child should not have been reduced to mere procedural formalism. The authorities had not considered the possibility that the discrepancy between the first and second applicants’ statements had been the result of a translation error. In the three judges’ view, it was not credible that a group of migrants would simply turn around and give up on their plan to cross the border owing to the mere presence of police officers, without trying to communicate with them in any manner or express their wish to seek asylum, as usually happened at that border-crossing point. The three judges further noted that the investigating authorities had ignored the fact that the Ministry of the Interior of the Republic of Serbia had publicly stated that “the Croatian police did not comply with the readmission agreement when forcefully returning the family of ... MAD.H., who died in a train accident ... immediately after the Croatian police officers had forcefully tried to return her to Serbia” and that “at the meeting held concerning the event, the representatives of the [Serbian] Border Police Administration had informed the Croatian [authorities] of their point of view, namely that the family of the late child had been transferred to Serbia from Croatia contrary to the agreement between the two countries”. The three judges noted that the latter statement had been in the case file, but that the investigating authorities had not referred to it in their decisions. Finally, the investigating authorities had not explored whether the impugned events had been recorded by any kind of recording device. It did not transpire from the case file whether they had tried to verify the location of the applicants and the police officers by using their mobile telephone signals, which had been a common and easy investigative method. The Croatian Ombudswoman had pointed to the same deficiencies in the investigation in question, as well as to deficiencies in other cases concerning asylum-seekers in Croatia (see paragraphs 12 above and 104 below). 26.     On 20 December 2018 the Osijek County Court appeal panel dismissed the applicants’ appeal (see paragraph 22 above). It held that the case file did not contain any information to support the accusations against the three police officers. 27 .     On 4 March 2021 the Constitutional Court dismissed a subsequent constitutional complaint lodged by the applicants against the Osijek County Court’s decision. It reiterated that the investigation into MAD.H.’s death had complied with the procedural requirements of Article 2 of the Convention. In particular, the fact that the recordings from the thermographic cameras had not been obtained had not affected the thoroughness of the investigation, as even without the recordings it was clear that MAD.H. had been hit by a train in the territory of Serbia, not Croatia. Even though there had been some delay in the applicants’ ability to contact their lawyer upon entering Croatia (see paragraphs 56-66 below), the applicants had been able to participate effectively in the investigation. The Constitutional Court also found no breach of Article 2 of the Convention in its substantive aspect in that it had not been proven that the State authorities had been responsible for the death of MAD.H. The applicants’ entry to Croatia oN 21 March 2018 28 .     On 21 March 2018 the Croatian police caught the applicants clandestinely crossing the Serbian-Croatian border and took them to Vrbanja police station ( Policijska uprava Vukovarsko-srijemska , Policijska postaja Vrbanja ). They were examined by a doctor and found to be in good health. The doctor noted, inter alia , that the fourth applicant was seventeen years old. The applicants did not have any identification documents with them. They signed a statement on their personal identification information and expressed a wish to seek international protection. the applicants’ placement in the Tovarnik Centre 29 .     On 21 March 2018 the police issued decisions in respect of the first to fourth applicants, restricting their freedom of movement and placing them and the applicant children in a transit immigration centre in Tovarnik ( Tranzitni prihvatni centar za strance Tovarnik – hereinafter “the Tovarnik Centre”) for an initial period of three months. The decisions stated that on 21 March 2018 the applicants, Afghan citizens, had expressed an intention to seek international protection in Croatia. They had not had any identification documents and their freedom had been restricted under section 54 of the International and Temporary Protection Act ( Zakon o međunarodnoj i privremenoj zaštiti ; see paragraph 78 below), in order to verify their identities. On the same day the applicants were placed in the Tovarnik Centre. 30.     On 26 March 2018 the second applicant contacted the Are You Syrious non-governmental organisation (NGO) via Facebook. He stated that the family was in a bad situation, locked up in their rooms without any information, and asked for help. 31 .     On 3 April 2018 the fourth applicant sent several voice messages to L.H., an employee of the Centre for Peace Studies NGO. She stated that they were being kept in prison-like conditions. They were placed in three rooms without any opportunity to see each other except during meals. They had been told that they had no lawyer in Croatia, even though the first applicant had confirmed to the officials that she had signed a paper with a lawyer in Serbia. 32 .     On 28 March and 6 April 2018, a psychologist visited the applicants in the Tovarnik Centre. The fourth applicant, who spoke some English, translated for the others. The psychologist noted that the applicants were mourning the death of MAD.H. and that they had been experiencing fear of uncertainty. He recommended providing them with further psychological support and organising activities to occupy the children’s time. He visited them again on 13, 18 and 27 April and 2, 8, 11, 23 and 25 May 2018. 33 .     On 6 April 2018 the Croatian Ombudswoman sent a letter to the Minister of the Interior ( Ministar unutarnjih poslova Republike Hrvatske ) and the Head of Police ( Glavni ravnatelj policije ) concerning the applicants’ restriction of freedom of movement. She asked about the action taken to verify the applicants’ identity, which had been the reason for their placement in the Tovarnik Centre (see paragraph 105 below). 34 .     On 10 April 2018 the authorities took the applicants’ fingerprints and transmitted them to the Central Unit of Eurodac (the European Union fingerprint database for identifying asylum-seekers). The Eurodac search system identified that the applicants had entered Bulgaria on 22   August 2016. On the same day the authorities sought information from Interpol Sofia and Interpol Belgrade on the applicants’ stay in those countries, with a view to checking their identities. On 23 April 2018 Interpol Sofia informed the Croatian authorities that the applicants had applied for asylum in Bulgaria and that their applications had been rejected in February and March 2017. The applicants’ names as registered in the Bulgarian system differed from those registered in the Croatian system, mostly in the suffix of their last name. In the Bulgarian system the fourth applicant was registered as being born on 16   April 2000. On 30 April 2018 the Serbian authorities informed the Croatian authorities that the applicants had expressed an intention to seek international protection in Serbia, but that they had left that country on 21   March 2018. 35 .     Meanwhile, on 19 April 2018 the lawyer I.C. asked the Osijek Administrative Court ( Upravni sud u Osijeku ) to restore the proceedings concerning restrictions on the applicants’ freedom of movement to the status quo ante ( prijedlog za povrat u prijašnje stanje ) and to authorise the applicants to lodge administrative actions against them. She submitted that on 30 March 2018 she had been appointed as the applicants’ legal aid lawyer in the proceedings concerning their application for international protection (see paragraph 51 below). On 3 April 2018 she had inspected the case file and discovered the decisions of 21 March 2018 restricting the applicants’ freedom of movement. On 12 April 2018 she visited the applicants in the Tovarnik Centre, who told her that they had not been served with the decisions and could not understand them. She inspected the case file again and learned that the disputed decisions and the document informing the applicants of their right to legal aid issued in the Croatian language had not been served on them with the help of an interpreter for Pashto or Farsi, which languages the applicants could understand. I.C. further submitted that the applicants had not hidden their identity and had given their fingerprints to the authorities and that placing the applicants in a closed-type immigration centre had been in breach of Article 3 of the Convention. 36 .     On 10 May 2018 Vrbanja police station replied to the applicants’ administrative actions. The mere submission of their personal identification information and fingerprinting had been insufficient to establish their identities. They had not been registered in the Schengen or Eurodac systems. The applicants said to the Croatian authorities that they had not sought asylum in other countries, whereas it had emerged that they had applied for asylum in Bulgaria and Serbia. Vrbanja police station deemed that restricting the applicants’ freedom of movement had also been justified by a flight risk pursuant to section 54(2)(1) of the International and Temporary Protection Act, in that it was possible that the applicants would leave Croatia for other countries. 37 .     By decisions of 11 and 14 May 2018, the Osijek Administrative Court allowed the applicants’ administrative actions as having been brought in due time. It found that even though the case file indicated that the decisions restricting the applicants’ freedom of movement had been served on them on the day they had been issued, there was no evidence that the applicants had been apprised of the decisions in a language they could understand. 38 .     On 17 May 2018 the lawyer S.B.J. informed the Osijek Administrative Court that she was taking over as the applicants’ representative in the proceedings. She submitted that as a result of the Court’s intervention on 7 May 2018 she had finally been allowed to meet the applicants (see paragraph 66 below). She also submitted a copy of the citizenship certificate issued to the first and second applicants and explained that the differences in the applicants’ names had been the result of the transliteration and translation of Afghan names into different languages, a common problem as regards Afghan names (see paragraph 116 below). 39 .     On 18 May 2018 the Osijek Administrative Court heard the first, second, third and fourth applicants individually. They submitted that the family had been placed in three rooms in the Tovarnik Centre and that they had been kept locked up except during meals. Recently, the rooms had been locked only during the night, but they were still not allowed to leave. The children, traumatised by all the border crossings, encounters with the police and their sister’s death, were suffering. The psychologist who had visited them did not speak English, Farsi or Pashto. They had not been served the decisions restricting their freedom of movement and had not known of their existence until I.C. informed them about thereof. The fourth applicant submitted that she did not know her exact date of birth, but that she had probably turned eighteen one month earlier. 40 .     On 22 May 2018 the Osijek Administrative Court partly allowed the third applicant’s administrative action and ordered that she and her two children (the seventh and eighth applicants) be released from the Tovarnik Centre the following day. The third applicant asked not to be transferred from the Centre without the rest of her family. The relevant part of that judgment read as follows: “[T]his court finds that at the time of the disputed decision the plaintiffs’ restriction of freedom of movement was justified ... However, even with all the conditions mentioned [by the State], this court cannot disregard the fact that [the Tovarnik Centre] is a prison-type facility which in the longer term is not an environment suitable for children ..., aged one and three. If the most severe type of measure is not to be arbitrary, it must be closely and consistently related to the purpose for which it had been ordered, and the duration of application of such measures must not exceed the time logically necessary for obtaining the desired aim ... Thus, if the defendant suspects any kind of abuse of the international protection system, based on the lack of kinship between the children and the adults, the defendant is obliged to obtain such data urgently. In the present case the identity and kinship of the child born on 1 January 2017 was easily accessible because she was born in Bulgaria, an EU Member State ... During these proceedings the court was not presented with any evidence that the third applicant is not the mother of [the two children]. The court heard the third applicant ... and concluded that she was illiterate and uneducated and unable to understand her current life circumstances. Furthermore, under section 52, subsection 3(8), of the International and Temporary Protection Act, persons seeking international protection are required to stay in Croatia during the proceedings. The case file contains a decision of 28 March 2018 dismissing the third applicant’s application for international protection...The court therefore no longer finds justified the existence of the reasons set out in section 54(2)(1) of the Act (and the related flight risk). The very fact that the request was already dismissed means that the other grounds from section 54(2)(2) of the Act relating to the establishing of identity and citizenship is also not founded ... ... keeping persons in an immigration centre solely on the basis of their irregular entry into Croatia is not legally justified, and the defendant did not submit to the court any kind of evidence in support of the allegation that the measure entailing restriction of freedom of moment by placing the [third applicant and her two children] in the Tovarnik Centre is still necessary ...” 41 .     On 24 and 25 May 2018, in different formations, the Osijek Administrative Court dismissed the remaining applicants’ administrative actions as unfounded. The court deemed that the restriction of their freedom of movement was still justified because it had not yet been possible to establish their identity. They were not registered in the Schengen or the Eurodac systems and they had used different identities in their applications for international protection in other countries. The flight risk could be established on the basis of the first applicant’s statement of 23 March 2018 that the family had spent around a year in Serbia without seeking international protection because there were no job opportunities there, which was untrue because they had sought asylum both in Serbia and Bulgaria and had repeatedly illegally crossed the Croatian border. Additionally, the applicants had instituted proceedings for international protection and were required to stay in Croatia until the end of those proceedings. The court further stated that the Tovarnik Centre had met the minimum requirements for short-term placement of a family with children. The child applicants were accompanied by their parents and the Centre had been accommodating only one other family with small children. From the photographs submitted it concluded that the Centre had facilities and activities capable of keeping the children occupied, and that the applicants had been provided with the necessary clothing, medications, access to hygiene products, fresh air and medical assistance. The overall conditions in the applicants’ case were Article 3-compliant, given that they had left their home country almost two years previously and that during the long journey the children had undoubtedly been exposed to numerous stressful factors owing to the presence of the police. Even though the death of MAD.H. had undoubtedly caused them immense pain, that had nothing to do with the conditions of their placement in the Tovarnik Centre. 42 .     The first, second and fourth applicants lodged appeals with the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), which were dismissed on 3 October, 14 November and 12 December 2018, respectively. 43 .     Meanwhile, on 6 April 2018, the applicants had also lodged a constitutional complaint in which they complained, inter alia , of the unlawfulness, disproportionality and inadequate conditions of their placement in the Tovarnik Centre, under Article 3, Article 5 § 1 and Article   8 of the Convention; their inability to contact their lawyer S.B.J., and their refoulement by the Croatian police, who had denied them the opportunity to seek asylum contrary to Article 4 of Protocol No. 4. 44 .     On 7 December 2018 the applicants made further submissions to the Constitutional Court, complaining, inter alia , of a breach of Article 5 § 4 of the Convention in that they had not been able to challenge their placement in the Tovarnik Centre until 19 April 2018, and that the Osijek Administrative Court had decided on their case only after they had already spent two months in detention. 45 .     On 18 December 2018 the Constitutional Court examined the applicants’ constitutional complaint concerning their placement in the Tovarnik Centre. It found that even though the Centre was a closed-type facility, it was equipped with all the requisite amenities for accommodating children with parents. The children were able to play and spend time in the open air from 8 a.m. to 10 p.m. and had access to a psychologist and a social worker. The Constitutional Court further found that the length of the children’s placement in the Centre (two months and fourteen days) had been lawful because under domestic law, the maximum period allowed was three   months, and that it had been justified by the need to verify their identities and kinship with the adult applicants and the need to prevent the criminal offence of human trafficking. Although it appeared that the child applicants had suffered stress which could affect their development, the Constitutional Court did not find that their placement in the Tovarnik Centre had caused any additional stress with traumatic consequences, given that at that time the children had already been travelling for around two years through different countries. It held that the situation did not attain the requisite threshold of severity under Article 3 of the Convention. As regards the adult applicants, the Constitutional Court deemed that their placement in the Centre could have caused a sense of helplessness, panic and frustration, but that the fact that they had not been separated from their children had had a soothing effect, and that therefore the threshold of severity under Article 3 of the Convention had not been attained. The Constitutional Court noted that on their placement in the Tovarnik Centre all the adult applicants had been informed of their right to legal aid and had chosen I.C. to represent them. The lack of contact between the applicants and their lawyer S.B.J. from 21 March to 7 May 2018 had not been unreasonably long in view of the number of applicants and the need to accommodate them in the immigration centre, as well as of the availability of an interpreter and other staff. That circumstance had not affected the applicants’ right of access to effective legal assistance concerning their placement in the Tovarnik Centre. Lastly, the conditions of the applicants’ placement in the Tovarnik Centre did not fall within the scope of Article 5 § 1 (f) of the Convention and the facts of the case did not indicate any possible violati