EHRM, 18-11-2021, nr. 15670/18, nr. 43115/18

The applicants contended that the Croatian authorities ought to have investigated MAD.H.'s death on their own initiative immediately after being apprised of the circumstances. The authorities ignored the evidence on the basis of which it had been possible to establish that the first applicant and her six children had entered Croatian territory, and that the police had apprehended and returned them to the border with Serbia. The applicants had not had an effective opportunity to participate in the investigation. Even though the investigation had been initiated following the criminal complaint lodged by their lawyer S.B.J. on their behalf, the investigating authorities had excluded S.B.J. from the investigation, and they had not been allowed to meet her until 7 May 2018.

The Government submitted that the investigation into the circumstances of MAD.H.'s death had complied with all the requirements of Article 2 of the Convention. Independent investigating authorities had promptly undertaken all actions with a view to verifying any causal link between the conduct of the Croatian border police officers and MAD.H.'s death. They gathered all documents, heard all witnesses and obtained documents from the Serbian authorities which had conducted an on-site inspection. The applicants' statements given in the investigation had been contradictory. Moreover, had they not left Croatia several months after lodging their criminal complaint, they could have contributed to the investigation by proposing evidence and pointing to possible failures. In their application to the Court the applicants had not pointed to a single piece of evidence which the authorities had failed to obtain. They were merely dissatisfied with the outcome of the investigation.

The Centre for Peace Studies submitted that, since 2016, Croatian authorities had been conducting collective expulsions of migrants without any identification or registration of the persons intercepted, access to a lawyer and interpreter or access to asylum procedure. A large majority of reported cases involved persons being ordered to cross the border to Serbia and Bosnia and Herzegovina, thus being forced to swim through rivers and pass through mountains or exposed to other dangerous situations. In 2019 the Croatian Ombudsperson for Children had received several complaints concerning unlawful expulsions of children at the borders with Serbia and Bosnia and Herzegovina. These expulsions were in breach of the children's right to seek asylum, and in complete denial of their best interests as extremely vulnerable persons. There had been no effective investigation into allegations of illegal practices of the Croatian police against migrants.

The Belgrade Centre for Human Rights referred to its joint report with the International Aid Network entitled ‘Documenting abuse and collective expulsions of refugees and migrants’, containing testimonies of collective expulsions and ill-treatment by Croatian officials in 2017. Most of the migrants interviewed had told similar stories: after crossing into Croatian territory though fields or forests, they had been spotted by Croatian officials, put into vans, transported to a place where they had been beaten, and later been pushed back to Serbia. Several persons reported that they had been taken near the railway line and told to return to Serbia by following the train tracks. Another field mission undertaken in 2019 had confirmed that such practices had continued in 2019.

Rigardu e.V. referred to its report of July 2017 containing testimonies of violent pushbacks from Croatia to Serbia gathered during its field work in Šid, Serbia, from 31 May to 13 July 2017. The circumstances in which these pushbacks had been carried out — in the middle of the night, outside official border crossings, in dangerous terrains and without notification of the authorities of the country to which the migrants were being returned — demonstrated that Croatian officials were systematically putting migrants' lives in danger. There was a systemic lack of an adequate response by the Croatian authorities regarding allegations of illegal and violent pushbacks, despite numerous reports and evidence in that regard. When it came to deaths and severe injuries, the investigating authorities should not predominantly rely on statements of officials implicated in the incidents, and testimonies of migrants should not be easily discredited on account of the linguistic challenges and their limited opportunities to gather and provide evidence.

The Asylum Protection Center submitted that, since 2016, numerous NGOs in the Western Balkans had reported widespread practices of unlawful and violent expulsions of migrants from Croatia to Serbia and Bosnia and Herzegovina. Such returns were being conducted outside official border crossings and without any prior notification of the authorities of the country to which the migrants were being returned, and thus in breach of the readmission agreements. The police usually ordered migrants to follow railways or roads, or cross rivers, as a result of which many of them had sustained accidents and died.

The general principles applicable in a situation where an effective criminal investigation is necessary to satisfy the procedural obligation imposed by Article 2 (see paragraph 137 above) have been summarised in Nicolae Virgiliu Tănase (cited above, §§ 164-71).

The present case concerns the death of a six-year-old migrant child, MAD.H., who was hit by a train after allegedly being denied the opportunity to seek asylum by the Croatian police officers and ordered to return to Serbia by following the train tracks.

In such circumstances and having in mind the fundamental importance of the right to life guaranteed under Article 2 of the Convention, the Court must apply careful scrutiny when examining whether the particular investigation satisfied all the guarantees required by the Convention.

The Court notes that MAD.H. was hit by a train at around 8 p.m. on 21 November 2017 in the territory of Serbia, some 200 metres from the border with Croatia. Her death was heavily covered by the national and international media. The key elements in the ensuing investigation were establishing the exact whereabouts of, and contact between, the first applicant and her children and the Croatian police officers on that date, and verifying allegations of pushbacks and deterrent practices allegedly used by the Croatian authorities in the present case.

The domestic authorities concluded that the first applicant and her children had never entered Croatian territory and that the police officers had not had any direct contact with them prior to the train hitting the child in Serbia. In so doing they relied on the statements of the police officers on duty on 21 November 2017, which were deemed concurring, whereas the statements of the first, second and thirteenth applicants were deemed contradictory as regards the crucial facts (see paragraphs 19 and 21 above). In particular, the second applicant 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.

In the circumstances of the case, the Court does not see why the latter discrepancy was given such crucial importance. The authorities did not consider the possibility that it could have been the result of a translation error during the first and second applicants' hearing on 31 March 2018 (see paragraph 16 above), nor has it ever been disputed that the first applicant remained with the children throughout. It was also not disputed that the thirteenth applicant had been present, who on the night of the accident had told the Serbian authorities that he and his family had been walking in Croatian territory when the police had made them board a van, transported them to the border and told them to return to Serbia by following the train tracks (see paragraph 18 above).

On the other hand, the domestic authorities in no way addressed the change in the police officers' statements during the investigation. In particular, on 22 November 2017 the police officers submitted that they had not had any contact with the first applicant or her children before the train hit MAD.H, but had merely spotted them inside Serbian territory and had then heard a train passing (see paragraph 11 above), whereas on 9 February 2018 they submitted that they had gone to the border and had signalled to the applicants not to cross it (see paragraph 13 above).

Moreover, the police officers submitted that, after the train accident, they had transported the mother and the child to the railway station, while the rest of the group had stayed at the border (ibid.). This appears to be contrary to the statement of the doctor who intervened after the accident and who submitted that at the railway station she had seen a group of migrants in the police van, and next to it a man holding a child (see paragraph 11 above). The domestic authorities did not address this discrepancy either.

The Court further notes that no material evidence was obtained which could have confirmed beyond any doubt the applicants' and the Croatian police officers' exact whereabouts on the evening of 21 November 2017. The police had informed the Vukovar County State Attorney's Office that the recordings of the thermographic cameras could not be submitted because the storage system had been broken at the material time, whereas police officer D. stated that it had been broken for one year before the event (see paragraph 15 above).

The case file does not show whether the investigating authorities ever verified the allegation that the storage system had indeed been broken and that there had been no recordings of the impugned events, as proposed by the applicants (see paragraph 20 above). When the applicants' lawyer raised the issue of the ‘loss’ of the recordings, she received a reply that she did not have a power of attorney to represent the applicants (see paragraph 17 above).

Furthermore, in January 2018 the Croatian Ombudswoman suggested that the contact between the applicants and the police be established by inspecting the signals from their mobile telephones and the police car GPS (see paragraph 12 above). The applicants also proposed obtaining such GPS locations in order to prove that they had been in Croatian territory before the train accident (see paragraph 20 above). In the circumstances, this appeared to be an obvious item of material evidence which could have elucidated the sequence of events (compare Sergey Shevchenko v. Ukraine, no. 32478/02, §§ 72–73, 4 April 2006, and Oğur v. Turkey [GC], no. 21594/93, §§ 89–90, ECHR 1999-III). However, neither the Office for the Suppression of Corruption and Organised Crime, nor the Osijek County Court's investigating judge or the appeal panel addressed these proposals (see paragraphs 19 and 21 above).

The Court further notes that the investigating authorities did not address the Serbian authorities' finding 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 (see paragraphs 20 and 25 above).

Moreover, even though the investigation into the circumstances of MAD.H.'s death was initiated following a criminal complaint lodged by the lawyer S.B.J. on the applicants' behalf, the investigating authorities did not inform her about the hearing of the first and second applicants on 31 March 2018 (see paragraph 16 above), where she could have helped clarify the alleged inconsistency in their statements.

The Court notes in that connection that, although doubts concerning the validity of her power of attorney may have arisen on 23 March 2018 (see paragraphs 49 above and 326 below), they were removed on 28 March 2018 (see paragraphs 58–59 above and 327 below), and at the latest on 31 March 2018 (see paragraphs 16 above and 328 below). Moreover, the authorities must have known that S.B.J. had meanwhile lodged a request for an interim measure with the Court on the applicants' behalf (see paragraph 67 above). Nevertheless, on 19 April 2018 the investigating authorities refused to provide S.B.J. with information regarding the investigation, or to take into account her proposals concerning material evidence (see paragraph 17 above), and the applicants were allowed to meet with her only on 7 May 2018 (see paragraphs 66 above and 329 below).

Having regard to the fact that the applicants are an Afghan family with no knowledge of the Croatian language or legal system and no contacts in Croatia, it is hard to imagine how they could have effectively participated in the investigation without the assistance of a lawyer. In these circumstances, the investigative authorities failed to ensure that the applicants, as MAD.H.'s next-of-kin, were involved in the procedure to the extent necessary to safeguard their legitimate interests (compare Benzer and Others v. Turkey, no. 23502/06, § 193, 12 November 2013, and Mezhiyeva v. Russia, no. 44297/06, § 75, 16 April 2015).

In view of the above-mentioned deficiencies, the Court concludes that the State authorities failed to conduct an effective investigation into the circumstances leading to MAD.H.'s death on 21 November 2017.

There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

The Court notes that the domestic courts, including the Constitutional Court, examined the conditions of the applicants' placement in the Tovarnik Centre and found that they were Article 3 compliant (see paragraphs 45–46 above).

In this connection, the Court's approach in examining the applicants' complaint must be guided by the principle, stemming from Article 1 of the Convention, according to which the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights. It is not the Court's task to substitute its own assessment of the facts for that of the domestic courts. The Court must be satisfied, however, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials, as well as by materials originating from other reliable and objective sources (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 150, 21 November 2019).

The Court further notes that the applicants had no identity papers and that different information was given on their exact age. The fact that the fifth to fourteenth applicants were children born between 2003 and 2017 (see appended table) was broadly accepted.

As to the fourth applicant, the Court observes that in the proceedings concerning the applicants' placement in the Tovarnik Centre, the authorities treated her as an adult (see paragraph 29 above). However, it notes that at the court hearing she stated that she had turned eighteen in April 2018 (see paragraph 39 above), and that according to the Bulgarian authorities she was born on 16 April 2000 (see paragraph 34 above), which would mean that during the first twenty-five days of her stay in the Tovarnik Centre she was a minor. Having also regard to the presumption of minority in case of uncertainty about age (see paragraphs 92, 95 and 98 above), and the fact that the doctor who examined her on 21 March 2018 noted that she was seventeen years old (see paragraph 28 above), the Court finds it appropriate to examine the fourth applicant's Article 3 complaint together with the Article 3 complaints submitted by the other child applicants. Indeed, while it is true that the fourth applicant was not a young child but a person closer to adulthood, she would still fall within the international definition of minors, in respect of whom the considerations outlined in paragraph 186 above apply.

The Court notes that at the material time the eleven applicant children were aged one, two, three, eight, ten, fifteen and seventeen (see appended table). They were held at the Tovarnik Centre from 21 March to 4 June 2018, that is to say, for two months and fourteen days.

The Court notes that the applicant children were accompanied by their parents throughout the said period. It finds, however, that this fact is not capable of exempting the authorities from their duty to protect children and take adequate measures as part of their positive obligations under Article 3 of the Convention (see R.R. and Others, cited above, § 59).

The Court observes that the material conditions in the Tovarnik Centre were satisfactory. From the photographs submitted by the Government, the facility appeared newly built, dry, freshly painted, clean and furnished. There was a children's playroom, a restaurant, a room for socialising, a basketball, football and handball court outside the building, as well as a children's playground (see paragraphs 177–178 above). There were no issues of overcrowding, excessive noise or lack of proper ventilation. The applicants were placed in rooms equipped to accommodate families with small children, they were given clean clothes, underwear, toiletries and material tailored to childcare, and were provided with medical and psychological assistance (see paragraphs 32 and 180 above, and contrast Muskhadzhiyeva and Others v. Belgium, no. 41442/07, § 59, 19 January 2010; Popov, §§ 93–97; A.B. and Others, § 113; S.F. and Others, §§ 84–88; G.B. and Others, §§ 102-17; and R.R. and Others, §§ 60–61, all cited above).

However, the Court cannot overlook the presence of elements in the Tovarnik Centre resembling a prison environment; it was surrounded by a wall, with police officers posted by its entrance and by the doors to each floor, and with barriers in the hallways and bars on the windows. Also, the doors to the applicants' rooms had a glass opening through which it was possible to see from the hallway into the room (see paragraph 178 above).

The Court finds worrying the Croatian Ombudswoman's remarks made, after her representatives had visited the applicants on 26 March 2018, that apart from the police officers who guarded the Centre, there had been no staff to carry out activities with the persons placed there, especially the children, or to provide food or cleaning and ensure daily medical assistance (see paragraph 106 above). It further takes into account the Croatian Children's Ombudswoman's remarks made, after visiting the Tovarnik Centre in April 2018, that the Centre had been inadequate for accommodating families with children, in that it had entailed a limitation of freedom of movement, had not been adequately equipped and there had been no experts to provide psychosocial support (see paragraph 107 above).

The Court further observes that the applicants consistently complained to the NGOs, the domestic authorities and the Court that during the initial part of their stay in the Tovarnik Centre they had been confined to their rooms and had been restricted in their access to indoor leisure activities and the outdoor facilities (see paragraphs 31, 35, 38–39 and 173 above). The Government initially submitted that the applicants had been allowed to use the outdoor facilities for two hours in the morning and two hours in the afternoon, but they subsequently rectified their statement, explaining that in fact they had been allowed to use the outdoor facilities and playground from 8 a.m. to 10 p.m. (see paragraph 179 above). The Croatian Ombudswoman reported having received contradictory information in that regard (see paragraph 106 above).

The Court is unable to make any definitive findings on this particular issue based on the material before it. However, it finds it important to emphasise that the restriction of access to leisure activities, outdoor facilities and fresh air inevitably causes anxiety and is harmful for children's well-being and development (see Article 23 of the relevant European Union directive cited in paragraph 87 above, and see also paragraphs 96 and 102 above).

The Court further observes that the psychologist established on 28 March 2018 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 (see paragraph 32 above). The Government submitted that the applicant children had been provided with activities carried out by the Jesuit Refugee Service NGO as of 16 May 2018 (see paragraph 177 above), without submitting any proof to that effect. In any event, by 16 May 2018, the applicant children had already spent almost two months in the Tovarnik Centre without any organised activities to occupy their time (see R.R. and Others, cited above, § 61, where no activities were organised for the applicant children for period of a month and a half).

The Court is of the view that the detention of children in an institution with prison-type elements, where the material conditions were satisfactory, but where the level of police surveillance was high and there were no activities structuring the children's time, would perhaps not be sufficient to attain the threshold of severity required to engage Article 3 where the confinement was for a short duration, depending on the circumstances of the case. However, in the case of a protracted period, such an environment would necessarily have harmful consequences for children, exceeding the above-mentioned threshold. The Court reiterates that the passage of time is of primary significance in this connection for the application of Article 3 of the Convention (see A.B. and Others, § 114, and R.R. and Others, § 64, both cited above).

The Court notes in that regard that various international bodies, including the Council of Europe, are increasingly calling on States to expeditiously and completely cease or eradicate immigration detention of children, emphasising the negative impact such detention can have on children's physical and mental health and on their development, even when they are detained for a short period of time or with their families (see G.B. and Others, cited above, §§ 67–79 and 151). The relevant European Union directive adopts the position that detention of minors should be ‘for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors’ (see paragraph 87 above). In the present case, the Court has found that the domestic authorities failed to act with the required expedition in order to limit, as far as possible, the detention of the eleven applicant children and their parents (see paragraphs 254 and 257 below).

The Court considers that the children's detention over a period of two months and fourteen days, in the conditions set out above, exceeded the permissible duration beyond which Article 3 of the Convention is engaged (see paragraph 199 above). Indeed, it was significantly longer than in the reference cases against France (fifteen days in Popov, cited above, § 92; eighteen days in A.B. and Others, cited above, § 111; and ten days in R.C. and V.C. v. France, no. 76491/14, § 36, 12 July 2016), and it must have been perceived by the applicant children as a never-ending situation. Bearing in mind that they were in a particularly vulnerable condition due to painful past events, as most of them had witnessed the tragic death of their six-year-old sister near the Croatian-Serbian border, the situation must have caused them accumulated psychological disturbance and anxiety.

The Court also takes note of the applicants' uncertainty as to whether they were in detention and whether legal safeguards against arbitrary detention applied, having regard to the fact that they were placed in the Tovarnik Centre on 21 March 2018 and received legal advice in that regard only on 12 April 2018 (see paragraph 35 above), and that they were not allowed to see their chosen lawyer S.B.J. until 7 May 2018 (see paragraph 66 above). Inevitably, this situation caused additional anxiety and degradation of the parental image in the eyes of the child applicants.

Accordingly, in view of the numerous children involved, some of whom were of a very young age, the children's particular vulnerability on account of painful past events, and the length of their detention in conditions set out above, which went beyond the shortest permissible duration due to the failure of the domestic authorities to act with the required expedition (see paragraphs 254 and 257 below), the Court finds that the situation subjected the applicant children to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention.

There has accordingly been a violation of Article 3 of the Convention in respect of the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth applicants.

The Court has already held that it was unable to make any definitive findings on the applicants' complaint that during the first part of their stay they were allowed to spend only one or two hours per day in the outdoor facilities (see paragraph 197 above). However, it finds it useful to emphasise that the adult applicants were not persons suspected or convicted of a criminal offence, but migrants detained pending the verification of their identity and application for international protection. Accordingly, there should not have been any unreasonable restriction in their using the outdoor facilities (see the immigration detention standards developed by the CPT, paragraph 102 above).

The Court must further examine the available evidence to establish whether, as alleged by the adult applicants, they could be considered particularly vulnerable and, if so, whether the conditions in which they stayed in the Tovarnik Centre were incompatible with any such vulnerability to the extent that those conditions constituted inhuman and degrading treatment with specific regard to the adult applicants (see Ilias and Ahmed, cited above, § 191).

The Court notes that it is true that asylum-seekers may be considered vulnerable because of everything they might have been through during their migration and the traumatic experiences they are likely to have endured previously (ibid., § 192). The Court observes in this connection that the applicants left Afghanistan in 2016.

The Court is further mindful of the fact that the adult applicants were mourning the recent tragic death of the six-year-old MAD.H. near the Croatian-Serbian border. The Court observes that the authorities provided them with phycological support. They were visited by a psychologist on numerous occasions in the Tovarnik Centre (see paragraph 32 above, and contrast R.R. and Others, cited above, § 63, where there was no professional psychological assistance available for traumatised asylum-seekers).

The applicants complained that the psychologist who visited them could not help them in any meaningful way because there was no interpreter present. The Court observes in that connection that the applicants conversed with the psychologist with the help of the fourth applicant, who spoke English, and the thirteenth applicant, who spoke some Serbian (see paragraph 174 above). The possibility for a patient to be treated by staff who speak his or her language is not an established ingredient of the right enshrined in Article 3 of the Convention (see Rooman v. Belgium [GC], no. 18052/11, § 151, 31 January 2019).

In addition, whilst the detention of the adult applicants with their children could have created a feeling of powerlessness, anxiety and frustration, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings (see Muskhadzhiyeva and Others, cited above, § 66, and Popov, cited above, § 105).

The Court is thus unable to conclude that the otherwise acceptable conditions at the Tovarnik Centre for adult applicants were particularly ill-suited to their individual circumstances to such an extent as to amount to ill-treatment contrary to Article 3.

The Court also considers that even though the adult applicants must have been affected by the uncertainty as to whether they were in detention and whether legal safeguards against arbitrary detention applied (see paragraph 35 above), the fact that they were aware of the procedural developments in the asylum procedure through their legal aid lawyer I.C. (see paragraph 51 above), and that in March and April 2018 they were visited by the Croatian Ombudswoman and the Croatian Children's Ombudswoman (see paragraphs 106–107 above), must have limited the negative effect of that uncertainty (compare Ilias and Ahmed, cited above, § 193).

Accordingly, having due regard to all the circumstances of the present case, the Court is of the view that there has been no violation of Article 3 of the Convention in respect of the first, second and third applicants.

The applicants submitted that their detention in the Tovarnik Centre did not fall within any of the permissible grounds under Article 5 § 1.

They contended that under the domestic law, as soon as a person expressed an intention to seek international protection, and until the decision on his or her application became final, he or she had the right to stay in Croatia (see paragraph 78 above). Relying on Suso Musa v. Malta (no. 42337/12, § 97, 23 July 2013), the applicants argued that their detention between 21 March 2018, when they expressed their intention to seek international protection and 4 June 2018, when they were transferred to an open-type centre, could thus not have been undertaken for the purposes of preventing their ‘effecting an unauthorised entry into the country’, given that there had been no ‘unauthorised entry’.

The applicants further submitted that the purpose of their placement in the Tovarnik Centre had not been their identification or the verification of kinship between them. The authorities had only started verifying their identity weeks after they had been placed in detention. Moreover, they never explained why they had doubted that the child applicants were not related to the adult applicants. If there had been a real suspicion of child trafficking, the State would certainly have taken steps to protect them. The aim of their detention had rather been to return them to Serbia in order to prevent their involvement in the criminal investigation concerning the death of MAD.H. and to prevent them from publicly speaking about their pushbacks.

The applicants lastly submitted that they had left Croatia in July 2018 after they had learned that, regardless of their suffering, their applications for international protection in that country had not been accepted.

The Government maintained that the applicants had been placed in the Tovarnik Centre for the purposes of establishing their identity, given that they had had no identity papers, and for the purpose of protecting the numerous minor children in the group by verifying their relationship with the adults. Additionally, there had been a risk of flight and further illegal border crossings, given that on arriving in Croatia the applicants had stated that their final destination was ‘Europe’ and the United Kingdom. The risk of flight had been confirmed by the fact that the applicants had several times tried to leave Croatia unlawfully once they had been transferred to an open-type centre.

The Government contended that the restriction of the applicants' freedom of movement had been lawful and not arbitrary. It had been ordered in good faith, with the purpose of preventing the applicants' unlawful entry into the country. The conditions of their placement in the Tovarnik Centre had been adequate, and the duration of their placement had been reasonable. The circumstances of their case had been thoroughly examined by the domestic courts.

The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which individuals may be deprived of their liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). One of the exceptions, contained in sub-paragraph (f), permits the State to control the liberty of aliens in an immigration context.

In Saadi (ibid., §§ 64–66) the Grand Chamber interpreted for the first time the meaning of the first limb of Article 5 § 1 (f), namely, ‘to prevent his effecting an unauthorised entry into the country’. It considered that until a State had ‘authorised’ entry to the country, any entry was ‘unauthorised’ and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be imposed, without any distortion of language, to ‘prevent his effecting an unauthorised entry’. It did not accept that, as soon as an asylum-seeker had surrendered himself to the immigration authorities, he was seeking to effect an ‘authorised’ entry, with the result that detention could not be justified under the first limb of Article 5 § 1 (f) (ibid., § 65). It considered that to interpret the first limb of Article 5 § 1 (f) as permitting detention only of a person who was shown to be trying to evade entry restrictions would be to place too narrow a construction on the terms of the provision and on the power of the State to exercise its undeniable right of control referred to above. Such an interpretation would, moreover, be inconsistent with Conclusion No. 44 of the Executive Committee of the United Nations High Commissioner for Refugees' Programme, the UNHCR's Guidelines and the Committee of Ministers' Recommendation (see Saadi, cited above, §§ 34–35 and 37), all of which envisaged the detention of asylum-seekers in certain circumstances, for example while identity checks were taking place or when elements on which the asylum claim was based had to be determined. However, detention had to be compatible with the overall purpose of Article 5, which was to safeguard the right to liberty and ensure that no-one should be dispossessed of his or her liberty in an arbitrary fashion (ibid., § 66).

In Suso Musa (cited above, § 97) the Court held that, where a State which had gone beyond its obligations in creating further rights or a more favourable position — a possibility open to it under Article 53 of the Convention — enacted legislation (of its own motion or pursuant to European Union law) explicitly authorising the entry or stay of immigrants pending an asylum application, an ensuing detention for the purpose of preventing an unauthorised entry could raise an issue as to the lawfulness of detention under Article 5 § 1 (f). The Court considered that the question as to when the first limb of Article 5 ceased to apply, because the individual had been granted formal authorisation to enter or stay, was largely dependent on national law (ibid.).

The Court further reiterates that detention is authorised under sub-paragraph (b) of Article 5 § 1 only to ‘secure the fulfilment’ of the obligation prescribed by law. It follows that, at the very least, there must be an unfulfilled obligation incumbent on the person concerned, and the arrest and detention must be for the purpose of securing its fulfilment and must not be punitive in character. As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see O.M. v. Hungary, no. 9912/15, § 42, 5 July 2016). Moreover, this obligation should not be given a wide interpretation. It has to be specific and concrete, and the arrest and detention must be truly necessary for the purpose of ensuring its fulfilment (see Iliya Stefanov v. Bulgaria, no. 65755/01, § 72, 22 May 2008).

Under the sub-paragraphs of Article 5 § 1, any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be ‘lawful’. Where the ‘lawfulness’ of detention is at issue, including the question whether ‘a procedure prescribed by law’ has been followed, the Convention refers essentially to national law but also, where appropriate, to other applicable legal standards, including those which have their source in international law. In all cases it establishes the obligation to conform to the substantive and procedural rules of the laws concerned, but it also requires that any deprivation of liberty be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Medvedyev and Others v. France [GC], no. 3394/03, § 79, ECHR 2010).

Indeed, no detention which is arbitrary can be compatible with Article 5 § 1, and the notion of ‘arbitrariness’ in that context extends beyond lack of conformity with national law: a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67; see also G.B. and Others, cited above, § 146, and Bilalova and Others v. Poland, no. 23685/14, § 74, 26 March 2020).

To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate, bearing in mind that ‘the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country’; and the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, § 74; see also A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, and Suso Musa, cited above, § 93).

As to the detention of migrant children, the Court notes that various international bodies, including the Council of Europe, are increasingly calling on States to expeditiously and completely cease or eradicate the immigration detention of children (see G.B. and Others, cited above, §§ 67–79, and 151).

It emerges from the Court's established case-law on this issue that, as a matter of principle, the confinement of migrant children in a detention facility should be avoided, and that only placement for a short period in appropriate conditions could be considered compatible with Article 5 § 1 of the Convention, provided, however, that the national authorities can establish that they resorted to this measure only after having verified that no other measure involving a lesser restriction of freedom could be implemented (see A.B. and Others, § 123; Bilalova and Others, § 79; and G.B. and Others, § 151, all cited above).

The Court notes that the move in international law towards adopting alternative measures to the administrative detention of migrants appears to concern not only children, but also their parents (see G.B. and Others, cited above, §§ 69, 72 and 168). The Court itself has acknowledged, albeit as part of its considerations under Article 8, that the child's best interests cannot be confined to keeping the family together and that the authorities have to take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life (ibid., and see also Popov, cited above, § 147).

Lastly, the Court has held that the detention of young children in unsuitable conditions in the context of Article 3, may on its own lead to a finding of a violation of Article 5 § 1, regardless of whether the children were accompanied by an adult or not (see G.B. and Others, § 151; see also Muskhadzhiyeva and Others, § 74, both cited above).

The applicants argued that their detention in the Tovarnik Centre did not fall within any of the permissible grounds under Article 5 § 1 (see paragraph 222 above).

In that connection, the Court first observes that contrary to the Constitutional Court's finding of 11 July 2019 (see paragraph 46 above), the applicants' detention could not have been covered by the second limb of Article 5 § 1 (f), because domestic law did not allow for deportation pending a decision on international protection and it is evident that no such proceedings were being conducted against the applicants (compare with Ahmade v. Greece, no. 50520/09, §§ 142-44, 25 September 2012).

The Court further notes that under the International and Temporary Protection Act, a person is considered an applicant for international protection from the moment he or she expresses an intention to seek international protection (see paragraph 78 above). Under sections 52(1), 53 and 54 of the Act, from the moment a person expresses an intention to seek international protection, until the moment the decision on the application for international protection becomes enforceable, such person has the right to stay in Croatia as well as the right to freedom of movement in that country. The Court notes that the freedom of movement may be restricted for the purposes set out in section 54(2) of the Act, such as the establishing of circumstances on which the application for international protection is based, in particular if it is deemed that there is a risk of flight, and establishing and verifying identity or citizenship.

The Court observes that the domestic law does not specify, nor did the Government argue, that any decision or other formal authorisation needed to be issued in order for a particular asylum-seeker to actually benefit from the right to stay in Croatia pending an application for international protection.

However, it may well be that what was intended was for the relevant domestic law to reflect international standards to the effect that an asylum-seeker may not be expelled pending the outcome of an asylum claim (see for example, S.D. v. Greece, no. 53541/07, § 62, 11 June 2009), without necessarily requiring that an individual be granted formal authorisation to stay in or to enter the territory.

At this juncture, the Court would reiterate that Article 5 § 1 (b) could also potentially provide justification, in some specific circumstances, for the detention of asylum-seekers (see O.M., cited above, § 48). The Court refers in that connection to the obligations of asylum-seekers under section 52 of the International and Temporary Protection Act, in so far as relevant to the present case, to submit to verification and establishing of identity and to stay on the territory of Croatia during the procedure for international protection (see paragraph 78 above).

However, the Court does not need to rule on whether the applicants' detention fell within one of the permissible grounds under Article 5 § 1, because in any event, for the reasons outlined below, it is of the view that their detention was not lawful.

The Court has already found under Article 3 of the Convention that the conditions in which the child applicants were held in the Tovarnik Centre were in breach of that Article (see paragraph 204 above). These circumstances may on their own have led the Court to find a violation of Article 5 § 1 in respect of the applicant children (see paragraph 239 above).

The Court will proceed with its analysis in respect of the entire applicant family.

In the present case, the police placed the applicants in detention on 21 March 2018 on the basis of section 54(2)(2) of the International and Temporary Protection Act for the purpose of verifying their identities (see paragraph 29 above). Apart from stating that the applicants were Afghan nationals who had expressed an intention to seek international protection and who did not have identification documents, there is no indication in the detention order that an assessment was carried out as to whether, in view of the numerous children involved, a less coercive alternative measure to detention was possible (compare A.B. and Others, cited above, § 124, and see the materials cited in paragraphs 87–88 and 91 above). The Court thus has serious doubts as to whether in the present case the authorities carried out such an assessment.

The Court further notes that, even though the applicants were detained on 21 March 2018 for the purpose of verifying their identities, it was only on 10 April 2018 that the authorities registered the applicants' fingerprints in the Eurodac system and sought information from Interpol Sofia and Interpol Belgrade with a view to checking their identity (see paragraph 34 above). The Court cannot but note that the foregoing occurred only after an inquiry by the Croatian Ombudswoman with the Ministry of the Interior (see paragraphs 33 and 105 above). By then, the applicants' application for international protection had already been dismissed by the Ministry of the Interior for over ten days (see paragraph 50 above). In the Court's view, this circumstance raises concerns as to the authorities' acting in good faith (see paragraph 235 above).

Furthermore, throughout the proceedings the authorities maintained, save for in respect of the third, seventh and eight applicants (see paragraph 256 below), that the applicants' placement in the Tovarnik Centre continued to be necessary as the mere submission of their personal identification information and fingerprinting had been insufficient to establish their identities, given that they had not been registered in the Schengen or Eurodac systems (see paragraph 40 above).

However, the Court observes that the Eurodac search conducted by the Croatian authorities revealed that the applicants had entered Bulgaria in 2016 (see paragraph 34 above) and that their asylum applications in Bulgaria had been rejected in 2017. Although their names in the Bulgarian system slightly differed from those in the Croatian system, mostly in the suffix of their last name, it was clear that those were the same persons (ibid.).

Furthermore, on 30 April 2018 the Croatian authorities received information on the applicants' stay in Serbia and on 17 May 2018 they received a copy of the citizenship certificate issued by the Afghan authorities for the first and second applicants (see paragraph 38 above).

Insisting, in these circumstances, that the applicants' detention continued to be justified by the need to establish their identity, could therefore raise further concerns as to the authorities' acting in good faith.

The Court further observes that on 10 May 2018 the domestic authorities additionally justified the applicant's detention by the flight risk they posed under section 54(2)(1) of the International and Temporary Protection Act (see paragraph 36 above).

Having regard to the fact that on 23 March 2018 the applicants submitted that they had spent around a year in Serbia without seeking asylum because there were no job opportunities and they wanted to live in Europe, and that they had failed to report that they had previously unsuccessfully sought asylum in Bulgaria (see paragraph 49 above), the Court has no cause to call into question the authorities' conclusion related to the flight risk (see section 54(4) of the International and Temporary Protection Act containing objective criteria defining the risk of flight, cited in paragraph 78 above). Indeed, having been transferred to an open-type centre in Croatia, the applicants repeatedly attempted to enter Slovenia unlawfully, eventually succeeded in doing so, and then left that country as well (see paragraph 47 above).

However, where the domestic authorities decided, on grounds provided for by law, to detain children and their parents for immigration-related purposes in exceptional circumstances, it goes without saying that the related administrative procedures, such as examining their application for international protection, ought to have been conducted with particular vigilance and expedition in order to limit, as far as possible, the detention of the applicant family (see Articles 9 and 11 of the relevant European Union Directive cited in paragraph 87 above, and compare Bilalova and Others, cited above, § 81).

In that regard the Court notes that, even though the Ministry of the Interior dismissed the applicants' application for international protection on 28 March 2018, it took another three months for the Osijek Administrative Court to review their appeal in order for the decision to become enforceable (on 18 June and 2 July 2018; see paragraph 54 above).

In addition, the Court notes that in the case of the third, seventh and eighth applicants, on 22 May 2018 the Osijek Administrative Court held that precisely because their asylum claims had already been dismissed on 28 March 2018, their detention could not have continued to be justified by the need to establish their identity and the circumstances on which they had based their asylum request (see paragraph 40 above). Had the Osijek Administrative Court examined their case more speedily, it could have ordered their release much earlier than 22 May 2018.

Accordingly, the delays in the present case, related to the verification of applicants' identity and the examination of their application for international protection before the Osijek Administrative Court, seriously call into question the diligence shown by the authorities in conducting the proceedings. The authorities failed to comply with the requirement of expedition and failed to take all the necessary steps to limit, as far as possible, the detention of the applicant family (compare Bilalova and Others, cited above, § 81).

This situation was further compounded by the fact that the applicants were not afforded relevant procedural safeguards, as shown by the Osijek Administrative Court's finding that there was no evidence that they had been apprised of the decisions placing them in the Tovarnik Centre in a language they could understand (see paragraph 37 above and, mutatis mutandis, Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, § 146, 22 November 2016). The Court notes in this regard that there have apparently been other cases in which migrants in Croatia had not been informed of the reasons for their detention because they had been given documents in Croatian which they could not understand, and had been unaware of their right to have a lawyer or to challenge the decision to detain them (see the relevant part of the fact-finding mission to Croatia by the Special Representative of the Secretary General on Migration and Refugees, cited in paragraph 110 above).

In conclusion, the Court considers that the applicants' detention was not in compliance with Article 5 § 1 of the Convention. Accordingly, there has been a violation of that provision.

The applicants submitted that when they had entered Croatia on 21 March 2018 and been placed in the Tovarnik Centre, they had not been informed that S.B.J. had been trying to contact them. She had been denied the right to represent them on the grounds that the power of attorney signed in her favour by the applicants had not been valid, while the applicants were told that they were not allowed to have the same lawyer in the criminal investigation concerning the death of MAD.H. and the proceedings for international protection. The NGO that had wished to clarify the circumstances of the applicants' signing the power of attorney in favour of S.B.J. had not been allowed to visit them in the Tovarnik Centre. The State had allowed the Croatian Children's Ombudswoman to visit the applicants in the Tovarnik Centre and clarify whether they had authorised the lawyer S.B.J. to represent them only after the Court's intervention under Rule 39.

The applicants argued that the initiation of a criminal investigation in respect of S.B.J. on suspicion of having forged the first and second applicants' signatures on the power of attorney had been aimed at frightening her and preventing her from assisting the applicants with their case. That investigation had continued even after the first and second applicants had expressly confirmed to the investigating judge that they had signed the impugned power of attorney, and after the representative of an NGO who had been present during the signing had confirmed that fact.

The applicants lastly submitted that the telephone conversations between the fourth applicant and I.C. and the lawyer S.B.J. had been supervised by the police. The fourth applicant could not use her mobile phone freely while in the Tovarnik Centre, as it had been taken away from her from time to time.

The Government denied that the authorities had in any way interfered with the applicants' right to lodge an application with the Court. During the entire period of their stay in Croatia the applicants had enjoyed legal assistance by either I.C. or S.B.J. They had effective access to different procedures in Croatia for the protection of their rights, such as the proceedings for international protection and the proceedings to challenge their placement in the Tovarnik Centre. They were able to lodge an application with the Court and request interim measures.

The Government contended that the initiation of the investigation into the powers of attorney signed in favour of S.B.J. had been lawful and justified. Once the first applicant had stated on 23 March 2018 that the signature on the power of attorney had not been hers, the police had had grounds for suspecting the criminal offence of forging a document. A graphologist's expert report also indicated that the first and second applicants' signatures had been forgeries and S.B.J. had herself admitted that she had not been present when the applicants had signed the powers of attorney in Serbia, contrary to section 18 of the Lawyers' Ethics Code (see paragraph 84 above). S.B.J. had not had direct contact with the applicants, nor had she received clear instructions to commence the proceedings before the Court on their behalf. Consequently, the Croatian prosecuting authorities had clearly had an obligation to conduct the investigation, in order not only to protect the legal order, but also to protect the applicants.

The applicants had freely chosen I.C. to represent them in the international protection proceedings from the list of legal aid lawyers provided to them. That list had also included S.B.J., but the applicants had not chosen her, which proved that they did not have any real connection to her as they did not even recognise her name.

The Government lastly submitted that under the relevant domestic law, the authorities were obliged to allow NGOs and other human rights organisations access to (detention) centres only as regards aliens and asylum-seekers who were awaiting removal. The applicants had not been subjected to proceedings for forcible removal or deportation from Croatia.

The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Ergi v. Turkey, 28 July 1998, § 105, Reports of Judgments and Decisions 1998-IV, and Shtukaturov v. Russia, no. 44009/05, § 138, ECHR 2008).

The Court notes that an interference with the right of individual petition may take different forms.

Preventing applicants from meeting with their lawyers and communicating with them by telephone and correspondence with a view to pursuing their case before the Court has previously led the Court to find a violation of Article 34 of the Convention (see Shtukaturov, cited above, §§ 138-49, and D.B. v. Turkey, no. 33526/08, §§ 65–67, 13 July 2010).

The institution of criminal proceedings against a lawyer involved in the preparation of an application to the Commission has also been found to interfere with the applicant's right of petition (see Şarli v. Turkey, no. 24490/94, §§ 85–86, 22 May 2001). Indeed, the initiation of reprisal measures against legal representatives, even where no action is taken in the end, can amount to a violation, as the initiation of such measures could have a ‘chilling effect’ on the exercise of the right of individual petition (see McShane v. the United Kingdom, no. 43290/98, § 151, 28 May 2002).

The Court has also held that the ‘general interest’ requires that consultations with lawyers should be in conditions ‘which favour full and uninhibited discussion’ (see Campbell v. the United Kingdom, 25 March 1992, §§ 46–48, Series A no. 233), and the police's failure to respect the confidentiality of lawyer-applicant discussions has been found in breach of Article 34 of the Convention (see Oferta Plus S.R.L. v. Moldova no. 14385/04, §§ 145-56, 19 December 2006).

The Court has consistently held, albeit in the context of criminal proceedings, that the national authorities must have regard to the defendant's wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Dvorski v. Croatia [GC], no. 25703/11, § 79, ECHR 2015, and the cases cited therein).

The Court observes that immediately after the applicants had been taken to Vrbanja Police Station on 21 March 2018, S.B.J. requested to meet with them and to take over their representation (see paragraph 56 above). She repeated her request the following day when she learned that the applicants had been placed in the Tovarnik Centre. The Court does not see why the authorities did not immediately inform the applicants that their lawyer was trying to contact them because, as mentioned by the Government, any doubts concerning the validity of the power of attorney signed by the first applicant could not have arisen until 23 March 2018, when the first applicant stated that the signature on the power of attorney was not hers (see paragraph 49 above). The fact that a person had been caught clandestinely crossing the Croatian-Serbian border could not serve as a basis for depriving that person of a lawyer's assistance.

The Court further observes that during the interview concerning her application for international protection the first applicant stated that the signature on the impugned power of attorney was not hers (see paragraph 49 above). The Court accepts that at that moment doubts could have arisen as to the validity of the power of attorney and that, having regard to the vulnerability of the first applicant and to the entirety of her statement that she had signed certain documents in Serbia, the authorities had reasonable grounds to verify the matter.

In this connection the Court observes that on 28 March 2018 the authorities received a detailed explanation of the circumstances of the first applicant's signing of the power of attorney in question from an employee of the Centre for Peace Studies NGO, who had been present during its signing in Serbia, and who had asked to meet the applicants in order to clarify the matter (see paragraph 58 and 59 above). However, his request was denied on security grounds. The domestic authorities and the Government did not submit any argument to show that the alleged security threat had any reasonable basis in fact (see, in this regard, Article 10 of the relevant European Union directive cited in paragraph 87 above).

The Court further observes that even though on 31 March 2018 the first and second applicants expressly confirmed to the investigating judge of the Vukovar County Court that they had signed the power of attorney in favour of S.B.J., the criminal investigation continued and the Vukovar Criminal Police visited the law firm of S.B.J., asked her to hand over the original of the power of attorney, and later on interviewed her and her colleagues as regards the circumstances under which the power of attorney had been signed (see paragraph 62 above). The Court notes that the Croatian Bar Association warned the Head of Police that those actions had been in breach of the Lawyers Act and had impeded the independence of the legal profession as guaranteed by the Croatian Constitution (see paragraph 64 above).

At the same time, the authorities must have known that on 4 April 2018 S.B.J. had lodged a request for an interim measure under Rule 39 on the applicants' behalf, asking, inter alia, to be allowed to contact them (see paragraph 67 above). The Court notes that it took two exchanges of correspondence with the Government (on 6 and 25 April 2018) and almost one month for the State authorities to allow the Croatian Children's Ombudswoman to visit the applicants in the Tovarnik Centre and clarify their legal representation by S.B.J. (see paragraphs 68 and 73 above). On 2 May 2018 the applicants met with the Croatian Children's Ombudswoman and confirmed to her that they were aware that S.B.J. had instituted proceedings before the Court on their behalf, and that they wished to meet with her and be represented by her. Indeed, the Court notes that on 3 April 2018 S.B.J. informed the fourth applicant via Viber that she was requesting an interim measure from the Court and lodging a constitutional complaint with the Constitutional Court (see paragraph 61 above).

The Court notes that on 30 March 2018, nine days after they had been placed in detention, the applicants were asked to appoint a legal aid lawyer, unaware as they were that their chosen lawyer had been trying to contact them since 21 March 2018 (see, mutatis mutandis, Dvorski, cited above, § 93). Therefore, while the applicants formally chose I.C. as their legal aid lawyer in the proceedings concerning their application for international protection, that choice was not an informed one because they had had no knowledge that S.B.J., whom they had previously appointed to represent them, had been asking to meet them.

As to the Government's argument that S.B.J. was on the list of legal aid lawyers but that the applicants had not appointed her because they clearly had no real connection with her, the Court notes that the applicants are Afghan nationals, with no knowledge of the Croatian language. They had not met S.B.J. in person when signing the power of attorney but had appointed her on a recommendation from the NGOs. They were in a vulnerable situation, having lost their daughter and wanting that matter to be investigated. In those circumstances, the Court does not blame the applicants for not recognising S.B.J. on the list of names of legal aid lawyers. Indeed, it was for the State authorities to inform them that she had been trying to contact them (compare, mutatis mutandis, Dvorski, cited above, §§ 87 and 93).

As to the Government's argument that the first and second applicants signed the power of attorney in favour of S.B.J. in the presence of NGO representatives without her being personally present, the Court recognises that in the migration context NGOs regularly work alongside lawyers and help them establish a connection with persons in need, since they have greater opportunities for contact with such persons (compare Hirsi Jamaa and Others, cited above, § 49).

It follows that the applicants, despite having appointed S.B.J. in December 2017 to represent them in all proceedings before the Croatian authorities, were left in detention without any legal assistance from 21 March to 2 April 2018, when the legal aid lawyer visited them in the Tovarnik Centre, and without the assistance of their chosen lawyer until 7 May 2018 (see paragraph 66 above). The Court has already held under Article 2 that owing to these circumstances, the applicants were unable to effectively participate in the criminal investigation into the death of MAD.H. (see paragraph 164 above).

Moreover, it was only owing to the persistence of the lawyer S.B.J. that the applicants' grievances were brought to the Court's attention. As noted above, the authorities could not have been unaware that she had lodged a Rule 39 request and an application with the Court on the applicants' behalf, and yet they continued to prevent contact between them until 7 May 2018. In such circumstances the authorities interfered with the applicants' rights under Article 34 of the Convention.

The Court takes the view that the authorities also interfered with the applicants' right of individual petition by putting undue pressure on S.B.J. in connection with the power of attorney signed in her favour by the first and second applicants (see, mutatis mutandis, Oferta Plus S.R.L., cited above, § 137). The Court finds that proceeding with the criminal investigation even after the applicants had confirmed to the investigating judge that they had signed the impugned power of attorney could have had a chilling effect on the exercise of the right of individual petition by the applicants and their representative. In that context, it is irrelevant that ultimately no criminal indictment was apparently brought in that regard (see, mutatis mutandis, McShane, cited above, § 151).

The Court considers that, on the basis of the material before it, there are sufficiently strong grounds for deducing that the restriction of contact between the applicants and their chosen lawyer S.B.J., and the criminal investigation and pressure to which that lawyer was subjected were aimed at discouraging them from pursuing the present case before the Court. Accordingly, there has been a breach of Article 34 of the Convention.

Having regard to the above-mentioned findings, the Court sees no need to examine the applicants' complaint regarding the monitoring of conversations with their lawyer.