Strasbourg Observers

MH and Others v. Croatia: Resolving the Jurisdictional and Evidentiary Black Hole for Expulsion Cases?

January 14, 2022

By Joyce de Coninck

MH and Others v. Croatia concerns the return of a family of 14 Afghan individuals from Croatia to Serbia, which resulted in the death of 6-year-old Madina Hussiny. This case is yet another in a rich line of recent cases relating to the rise of institutionalized pushbacks at the external territorial border of the European Union that have been brought before the ECtHR and the Court of Justice of the European Union (CJEU) alike. Whereas most of these cases concern pushbacks that have some foundation in domestic law, the pushbacks under examination in the present case do not and are instead indicative of a more widespread practice without any legislative basis.  


On 21 November 2017, several of the applicants crossed from Serbia into Croatia. They were apprehended by Croatian police officers and placed in a van that returned them to the border with Serbia. Upon arrival, the applicants were instructed by Croatian police officers to follow the train tracks back into Serbian territory. Shortly thereafter, an incoming train from Croatia into Serbia fatally hit six-year-old Madina Hussiny. The events took place at one of the most heavily surveilled border crossing points. Following Madina Hussiny’s death, the applicants returned to Serbia, without lodging any requests for international protection in Croatia.  

Four months after the applicants’ return to Serbian territory, they irregularly crossed back into Croatian territory. They were apprehended by the police once again and they expressed their wish to apply for international protection. They were placed in the Tovarnik Transit Centre, while the processing of their international protection requests was initiated. While their claims were being processed, the Croatian authorities were informed by Interpol Sofia that they had initially applied for, and been denied, asylum in Bulgaria in February and March 2017.  The Croatian authorities were also informed that the applicants had communicated an intention to seek asylum in Serbia but had nevertheless left the country.   

Following the fatal incident on 21 November 2017 and their ensuing confinement upon re-entry to Croatia, the applicants initiated a number of legal and administrative proceedings against the Croatian authorities, in which the Croatian Ombudswoman and several NGOs were involved. These proceedings all found that the right to an effective remedy had been respected, that the reception conditions did not reach a threshold liable of triggering protection offered under the European Convention of Human Rights (ECHR), and that the restriction of the applicants’ movement was justified considering, inter alia, their flight risk.

While the sheer amount of legal and administrative proceedings initiated at the domestic level is striking in itself, the proceedings are also noteworthy on two additional interlinked points: the evidentiary standards applied and concomitant thereto, the three separate opinions by judges in the Croatian Constitutional Court in one of the proceedings. These judges held that the determination of whether an effective investigation had been conducted by the Croatian authorities concerning the death of Madina Hussiny, was flawed because the procedural requirement to conduct an effective investigation under Article 2 ECHR, cannot be reduced to mere ‘procedural formalism.’ In other words, according to the separate opinions, to comply with the procedural limb of Article 2 ECHR, it did not suffice to merely initiate proceedings, without an in-depth assessment of the sufficiency of the investigation. The separate opinions noted that it was not credible that upon first entry into Croatia the applicants had allegedly not indicated an intent to ask for international protection and that it was non-sensical that no attempts had been made by the investigative judges to obtain the thermographic video footage of the incident, or any other location data from cell phones, which is regularly relied upon in such situations.

Judgment of the Court

Substantively, the Court ruled on Croatian authorities’ compliance with the procedural limb of the right to life (Article 2) in relation to the investigation of Madina Hussiny’s death, whether the reception conditions at the Tovarnik Centre complied with the requirements of Article 3 and whether family’s confinement in the Tovarnik Centre was compatible with the right to liberty (Article 5(1) and 5(4)). They also ruled on whether the return of the applicants to Serbia amounted to a violation of the prohibition of collective expulsion (Article 4 Protocol 4 ECHR) and whether Croatia had complied with Article 34 concerning interim measures. Although the present analysis will focus on the Court’s consideration of Article 2 and Article 4 Protocol 4, it is crucial to underscore that the ECtHR found violations of the Convention across the board.

The reasoning of the Court regarding Article 2 ECHR and Article 4 Protocol 4

With respect to Article 2, the Court further cemented its previous findings on the extra-territorial jurisdiction of the Convention. According to the Croatian government, complaints directed against it by the applicants were inadmissible as Madina Hussiny was on Serbian territory when she was struck by the train. This provided the Court with the opportunity to further clarify its stance on the extra-territorial applicability of the Convention beyond the context of military and covert operations (see Hanan v. Germany, Carter v. Russia, and Güzelyurtlu and others v Cyprus and Turkey). The Court reiterated that ratione loci extra-territorial jurisdiction will be established when domestic legislation provides for (criminal) proceedings to be initiated for incidents occurring outside of its territory. Additionally, when such domestic legislation does not establish a link with extra-territorial facts, jurisdiction may nevertheless be established if ‘special features’ are present. The Court emphasized that such ‘special features’ are not pre-emptively defined and should be assessed on a case-by-case basis. Finally, the Court also noted that with respect to the exhaustion of domestic remedies, applicants are not under an obligation to initiate civil proceedings when criminal proceedings have already been exhausted to file a complaint before the ECtHR.

Having established their jurisdiction in casu as domestic (criminal) proceedings had been initiated for the death of Madina Hussiny, the ECtHR addressed whether the procedural limb of the right to life had been respected. The ECtHR noted that there had been no (adequate) attempt by the investigative judges to obtain the thermographic video footage of the events, or any other additional GPS/location data capable of clarifying the discrepancies between the statements of the implicated police officers, the doctor who pronounced the death of Madina Hussiny on the scene and the applicants. In addition, the Croatian authorities did not demonstrate compliance with the Serbian-Croatian Readmission agreement. These findings led the Court to conclude that the investigation into her death had not been adequate and thorough and that Croatia had violated the procedural limb of the right to life. The Court refrained from ruling on the substantive limb of the right to life due to the lack of compelling evidence.

Finally, with regard to the prohibition of collective expulsion, the Court further clarified the evidentiary standards to be applied in expulsion cases. As a preliminary point, the Court noted that in cases where the applicant’s complaint about collective expulsion hinges precisely on the lack of individualized treatment by the domestic authorities and insofar the applicants have provided prima facie evidence on the matter, the burden of proof shifts to the respondent State to demonstrate that it has complied with the obligations under Article 4 Protocol 4. Crucially, and more specifically, the Court clarified the highly mediatized ND and NT v Spain case, by explicitly spelling out the test to be applied for the burden of proof to shift to the respondent state. Where no individualized treatment has occurred and the return is collective by nature, it must first be assessed whether there is ‘culpable conduct’ by the applicants in entering the territory of the respondent state in an irregular manner. If this is the case, the Court will assess whether the applicants had access to legal pathways to enter the Respondent state to ask for international protection (1), and whether the Applicants had ‘cogent reasons’ for entering the State irregularly (2). When these conditions are met, the burden of proof shifts to the respondent state to demonstrate its compliance with the prohibition of collective expulsion. In MH and others, the Court found that the combined statements by the applicants, the extensive reporting by civil society on the conduct of Croatian authorities concerning pushbacks at the Croatian-Serbian border, and the complete absence of evidence by Croatia refuting the applicants’ claims, were indicative of the fact that no effective and genuine access to legal pathways were available to the applicants. Thus, the Court found a violation of Article 4 Protocol 4 ECHR had occurred.


MH and others is yet another judgment concerning (collective) expulsion in an increasingly larger pool of expulsion cases brought before European courts. In recent years, both the ECtHR (Ilias and Ahmed v Hungary; ND and NT; MA and others v Belgium; MK and others v Poland, RR and others v Hungary) and the CJEU (Tompa, FMS) have repeatedly been asked to rule on the validity of pushback practices at European borders with respect to the non-refoulement principle, the prohibition of collective expulsion, and the right to liberty where applicants for international protection are detained (in transit) before being returned to third countries. While the increase of highly similar complaints concerning pushbacks submitted almost in parallel to the ECtHR and CJEU may exacerbate the risk of legal conflict between the two, MH and others is notable because it appears to limit the potential for such legal conflict and moves instead, to reconcile the approaches taken by both courts in expulsion cases. After the somewhat diverging approaches adopted by the ECtHR and the CJEU in expulsion cases concerning Hungary and Serbia (see here for a brief discussion), this is a welcome development that militates in favor of legal certainty and the effectiveness of fundamental rights protection. This shift is notable for two reasons: first, the clarification of extra-territorial jurisdiction under the ECHR and second, the cementing of the evidentiary test applicable in expulsion cases, which increasingly aligns with the stance adopted by the CJEU.

Extra-territorial Jurisdiction

In most expulsion cases brought before the ECtHR, jurisdiction does not necessarily pose an issue for the applicants – generally they will have crossed into the territory of the contracting State, and evidence will be available to establish territorial jurisdiction based upon irregular entry into, or at the border of the State concerned. The present case differs however, as there is no documentary evidence to establish that the applicants had crossed into Croatian territory and indeed, their irregular entry was denied by Croatian authorities. The subsequent death of Madina Hussiny could thus have posed a legal obstacle in establishing jurisdiction as it occurred extra-territorially in Serbia. Interestingly, and although Croatia did not contest the extra-territorial jurisdiction of the ECHR proprio motu, the Court clarified how extra-territorial jurisdiction applied in this case (see supra). Seemingly, the ECtHR is taking definitive steps away from its restrictive understanding of extra-territorial jurisdiction, adopted in the seminal Bankovic and others v Belgium admissibility decision, which provided for exceptional extra-territorial jurisdiction based on effective (spatial) control, and state-agent (personal) control (see inter alia § 127-128 MK and others). Instead, it appears to be adopting a third ground for extra-territorial jurisdiction in Article 2 cases where domestic law obliges domestic authorities to initiate criminal proceedings or other special features exist to warrant extra-territorial jurisdiction. (See Güzelyurtlu, Hanan, Carter). This is currently limited to cases concerning Article 2 ECHR, but is nevertheless non-exhaustive as ‘…the Court does not consider that it has to define in abstracto which “special features” trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2, since these features will necessarily depend on the particular circumstances of each case and may vary considerably from one case to the other’ (§ 190 Güzelyurtlu). By transposing this third ground for extra-territorial jurisdiction to expulsion cases concerning Article 2 ECHR complaints, the ECtHR leaves the door ajar to scrutinize de facto pushback policies that do not have a legislative domestic basis and for which individualized evidence cannot be offered by the applicants (unlike the pushback practices in Hungary and Poland). It remains unclear however, whether applicants will be able to rely upon the ‘special features’ argument to establish extra-territorial jurisdiction in expulsion cases beyond Article 2 complaints.  Can the ‘special features’ argument be invoked to establish extra-territorial jurisdiction where violations of Article 3 or 8 ECHR are at stake? This remains to be seen.  

Finally, this shift to a (slightly) broader approach to extra-territorial jurisdiction in expulsion case law appears to align more with the jurisdictional nexus required to trigger the protection of the Charter of Fundamental Rights (CFR) – the EU counterpart to the ECHR. Unlike the ECHR, the CFR is not constrained by territorial limitations. Instead, the CFR (including its provisions on non-refoulement and the prohibition of collective expulsion) applies as soon as Member States are implementing EU law, regardless of the territorial reach (Article 51 CFR). By adopting this stance on extra-territorial jurisdiction, the ECtHR appears to ensure that no legal conflict can arise between both Courts, to the benefit of legal certainty and effectiveness of human rights protection in Europe more generally.

Evidentiary Black Holes

Similarly, in MH and others the ECtHR strengthened the extremely precarious position asylum seekers frequently find themselves in by addressing the burden and standard of proof in expulsion cases. In MK and others, the ECtHR had already clarified the substantive and procedural positive obligations that rest upon the expelling contracting Parties concerning the non-refoulement obligation and the prohibition of collective expulsion. However, the latter case hinged on expedited return proceedings with summary return decisions that were not subject to appeal. Moreover, the recourse to expedited return proceedings and summary return decisions were grounded in domestic legislation. Conversely, in MH and others there were neither expedited proceedings or return decisions to contest, nor domestic legislation providing for such procedures – the applicants simply had no documentary evidence whatsoever evidencing the pushback they had been subject to. The ECtHR clarified that when no such evidence can be adduced by the applicants due to the contracting party’s conduct the burden of proof shifts to the respondent State regardless of the applicants’ irregular entry (see supra and see here). By adopting this approach, the ECtHR ensures that the non-refoulement obligation and the prohibition of collective expulsion do not become ‘theoretical and illusory’ but instead remain ‘practical and effective’. Had the burden of proof remained exclusively with the applicants, the positive substantive and procedural obligations enunciated in MK and others, could easily have been circumvented by simply resorting to de facto pushbacks not grounded in domestic legislation – the applicants would have had no means to demonstrate that they had been subject to pushbacks which contravened the principle of non-refoulement and the prohibition of collective expulsion.

With its ruling in MH and others the ECtHR helped strengthen the position of applicants for international protection in a manner that aligns with the approach adopted by the CJEU and the EU more generally. In the EU’s secondary legislation, such as the Asylum Procedures Directive and the Qualification Directive, there are explicit substantive obligations enunciated that must be met by EU Member States to be considered in compliance with the prohibition of refoulement and collective expulsion (see for example Article 38 Asylum Procedures Directive). These pre-emptively defined obligations, place the burden of proof for compliance therewith, directly with the Member States. Again, this (indirect) alignment between the ECtHR and the CJEU ensures more consistency and legal certainty and minimizes the risk of legal conflicts. Notwithstanding the significant drawbacks and flaws that remain inherent to the European regime concerning asylum, borders and migration, the incremental judicial convergence concerning pushbacks at external European borders, is a much-needed development from the perspective of the individual rights-holder.

Concluding Remarks

The impact of the judgment cannot be exaggerated. Despite providing significant judicial clarification and convergence concerning (extra-territorial) jurisdiction and the evidentiary standard to be applied in expulsion cases, political willingness is wavering in bringing border proceedings in line with the legal standards of non-refoulement and the prohibition of collective expulsion. This is evidenced by the questionable proposal by the European Commission on more simplified return proceedings at the Polish-Belarusian border, and the Council conclusions on the fulfilment of the necessary conditions for the full application of the Schengen acquis in Croatia –  which come despite widespread coverage of illegal pushbacks being executed at both borders. Additionally, what makes the facts of this case stand out is that unlike the situations that gave rise to the expulsion cases implicating Hungary and Poland, Croatia did not have domestic legislation providing for expedited procedures. Had there been political willingness by Croatian authorities to immediately apply EU law on the matter, it would have been clear from the onset that the family had already applied for asylum and the death of Madina Hussiny, along with the endless legal and administrative procedures, could have been avoided.

On a final somewhat personal note, I am struck by the partly dissenting and concurring opinion by Judge Wojtyczek in the present case. In this opinion, the observation is made that the ‘interest of the child’ as a standard adopted in expulsion cases results in the instrumentalization of children by third country nationals, to obtain more favorable treatment. There appears to be conflation here between individual access to international protection proceedings and the reception conditions one may receive upon arrival in a signatory State. Whereas reception conditions may indeed differ for families with minors to better accommodate the vulnerability of children, access to international protection proceedings (theoretically) exist regardless of whether minors have accompanied their family members. Given the lack of nuance in these observations, I am left wondering what was meant by the reference to the instrumentalization of minors to ‘obtain better treatment.’ More than that, the observation appears extremely misplaced and absent of any legal substantiation, not in the least as the case concerns the death of a six-year-old child due to an illegal pushback practice.

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