Pushing states to evidence pushbacks: Lessons from MH v. Croatia for intersecting domestic criminal law and international human rights

Guest post by Irina Fehr and Jill Alpes. Irina Fehr is a PhD candidate at Tilburg University researching crimes conducted during migration control and criminalisation of migration at external EU borders in Croatia. Jill Alpes is member of the ERC-funded DISSECT research group and senior researcher at the Human Rights Centre at Ghent University. Her research looks at the production and assessment of evidence for litigating pushbacks at European borders. Her research is based on interviews with civil society organizations and litigators, as well as participatory research on the pushback corridor Cyprus-Lebanon-Syria. This post was first published on the DISSECT blog on 6 November 2023.  ‘DISSECT: Evidence in International Human Rights Adjudication’ is a Horizon 2020 research project funded by the European Research Council through an Advanced Grant (ERC-AdvG-2018-834044) and led by Prof. Marie-Benedicte Dembour at Ghent University. 

A 'pushback' refers to the forcible expulsion of individuals from a country without considering their specific circumstances, denying them the chance to seek asylum, often accompanied by violence. Although pushback practices may also constitute crimes, human rights-based litigation is predominant. In this blogpost, we explore how addressing pushbacks with criminal procedures at the domestic level can intersect with human rights adjudication at the regional level, and vice versa. What repercussions can domestic criminal complaints have on human rights procedures at the regional level? And what trickle-down effects can regional human right judgments have at the domestic level? We discuss these dynamics based on the context of Croatia, where pushbacks have been widespread since 2016. 

Pushbacks: crimes or human rights violations? 

States committing pushbacks engage in multiple human rights violations. In Europe, pushbacks are mostly litigated as infringements of the prohibitions of torture or collective expulsions, and depending on the circumstances, as violations of the right to life – all of which are enshrined in the European Convention on Human Rights (ECHR, see e.g. case law here, here, here, and here).  Concurrently, state officials committing pushbacks frequently violate domestic criminal law, encompassing offences like bodily injuries, thefts, abuse of position and authority, and – again – torture, which is both a widely recognized criminal offence and human rights violation.  

Domestic criminal and international human rights law form separate frameworks applicable to pushbacks. Human rights procedures primarily seek to establish state responsibility for safeguarding fundamental rights. In contrast, criminal law provides a domestic mechanism for assessing individual liability when criminal statutes are violated. Nonetheless, these frameworks interconnect in certain aspects. For instance, human rights such as the right to life and the prohibition of torture (art. 2 and 3 ECHR) necessitate effective investigations, which typically follow domestic criminal protocols. 

The challenges of evidencing and litigating pushbacks in Croatia 

Croatia comprises the longest external EU land borders, which are either composed of rivers or dense forests, and are hard to cross. When, in 2015, Croatia became a candidate to join the Schengen area, it needed to prove its capability to control its borders and prevent unauthorised entries. Coinciding with higher arrivals of people-on-the-move, pushbacks have become systematic since 2016. 

Consequently, a network of NGOs has heavily invested into documenting pushbacks at the Croatian border. The Border Violence Monitoring Network (BVMN) has assembled a vast amount of evidence, mostly including testimonies of pushback victims, information gathered by frontline responders, as well as photos from suffered injuries. Moreover, BVMN has produced over 200 hours of video material catching such violent pushbacks on tape. 

Substantial documentation, however, does not automatically result in good evidence for court cases, nor in court cases at all. The anonymised testimonies portray pushbacks from the victims' viewpoint and often lack corroborating evidentiary material. Further aspects complicate criminal litigation: most pushback victims want to continue their journey, whereby they often lose contact with lawyers willing to litigate their cases. Others fear that filing a complaint against state officials might hinder their chances of receiving asylum in Croatia and therefore oppose criminal procedures.  

Ineffective criminal investigations as the steppingstone to the ECtHR  

The most prominent pushback case in Croatia centers around Madina Hussiny, a six-year-old Afghan girl. Following a pushback in 2017, she was deadly struck by a train while walking with her family from Croatia back to Serbia. Her case was exceptional in many ways: the lawyer was able to maintain contact with the family, who consented to initiating proceedings. A criminal complaint could be filed, and following its dismissal on grounds of lacking evidence, the family pursued private prosecution demanding a criminal investigation. This was rejected again on the same grounds. Next, the lawyer filed a constitutional complaint about the lack of an effective criminal investigation, which was again dismissed.  

Upon referral to the European Court of Human Rights (ECtHR), however, judges found that an effective criminal investigation had indeed not taken place. The very fact that the Croatian authorities had not procured the respective evidence constituted a human rights violation (procedural component of article 2 ECHR). In doing so, the ECtHR recognised the state’s burden of proof, building on the prima facie evidence provided by the applicants. Hence, evidence and the state’s duty to obtain it emerged as a pivotal nexus between the domestic criminal procedure and regional human rights adjudication. 

The limits of criminal law  

Since 2017, about ten criminal complaints have been filed in Croatia for pushback-related offences, mostly upon the initiative of the Croatian Center for Peace Studies. After a criminal complaint is filed, the police usually conducts an initial inquiry, and in case of reasonable suspicion that a criminal offence occurred, an investigation is carried out. Thus, state authorities are responsible for producing evidence about the incidents in question. Accordingly, there is no legal obligation to submit evidence when filing a criminal complaint. This could in theory constitute a major advantage for addressing pushbacks through criminal law: state authorities are obliged to investigate and gather evidence on incidents that are hard to document for private parties. However, practice shows that most of the pushback-related complaints in Croatia are currently either stuck in the pre-investigation phase, often significantly surpassing stipulated procedural deadlines, or they have been rejected because of lacking grounds to suspect a criminal offence. Consequently, none of these complaints have yielded indictments or criminal charges.  

Effects of ECtHR judgments for domestic criminal investigations  

Considering the meagre results at the domestic level, one might ask what benefits a criminal law approach offers for pushback litigation. A significant merit lies in its interplay with regional human rights litigation, exemplified in Madina’s case: the initial criminal procedure facilitated the case's elevation to the ECtHR, whose verdict compelled Croatia to formulate an action plan. This prompted a reopening of the criminal investigation into Madina’s death, which is presently ongoing, conducted by a special Croatian task force. However, the re-opened investigation has remained in the hands of the police, and no efforts have been made to collect additional evidence, leading civil society organisations to continuously doubt its efficacy.  

As part of the action plan, additional measures including educational programs for the State Attorney office are foreseen, which should expand the impact of the judgement beyond the specific case. However, the Government does not question the overall effectiveness of its investigations, nor the Constitutional Court’s practice in dealing with the respective remedies.  This contradicts NGOs’ concerns about the structural deficiencies when criminal complaints are filed against police officers. 

Conclusion 

In summary, domestic criminal law offers possibilities to establish individual liability for pushbacks. Despite numerous challenges and limited practical efficacy at the local level, criminal procedures can serve as a gateway to regional human rights adjudication through the procedural elements of articles 2 and 3 ECHR. Conversely, human rights judgments can reshape the context of domestic criminal investigations and lead to international oversight. Pushback litigation thus exemplifies a reciprocal interaction between domestic criminal and regional human rights frameworks, with evidence as a pivotal connecting factor. Although trickle-down effects of human rights victories at the ECtHR for criminal investigations at the domestic level in Croatia have been limited, they may contribute to structural changes extending beyond the individual responsibility of state officials. 

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