M.H. et al; F.H. et al v High Administrative Court - U-III-4865/2018 U-III-837/2019 U-III-926/2019

Croatia

FINAL

Constitutional Court

Art. 14, 21 (1), 23(1), 27, 29(1), 33 and 35 of the Constitution and Art. 2, 3, 4(5),5(1), (6), 8, 13, 14 and 34 of ECHR and Article 1 Protocol No. 12

2021

Applicant

Joint proceedings regarding three constitutional complaints that concerned a family from Afghanistan. After crossing the border with Serbia they expressed an intention to seek asylum but were ordered by the Croatian border police to go back to Serbia. Soon after the little girl (Medina) died and the rest of the family returned to Croatia and requested international protection at the Vrbanja police station. According to them they were treated inhumanely during the procedure for international protection. The authorities used the concept of a safe third country (Serbia) and rejected the requests for international protection. The Constitutional Court pointed out that it is not enough to focus only on the normative framework and the number of the granted applications for asylum in a certain country without also verifying the relevant reports of refugee protection bodies and NGOs regarding the actual treatment of persons returning to Serbia from Croatia and whether they are at risk of automatic refoulement. The Constitutional Court found that the authorities did not establish with sufficient certainty that Serbia is a safe third country and that Croatia therefore did not meet its procedural obligations from Art. 3 ECHR regarding the return of the family to Serbia. Subsequently the Court annulled the Administrative court judgements and referred the cases back to the Administrative court for a retrial.

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