Monday, 18 April 2022

Šimonović Einwalter: System Must Change After the Verdict On Madina's Death

April 18, 2022 - Ombudswoman Tena Šimonović Einwalter believes that, after the ruling of the European Court of Human Rights that holds the Croatian government responsible for the death of little Madina Hosseini, the system must be changed to one that guarantees the security and respect for the human rights of the refugees who enter to Croatia. She points out, in relation to the current situation in Ukraine, that she would like a future response from the EU to be the same for all those escaping the horrors of war.

Ombudswoman Tena Šimonovic Einwalter said in an interview with Hina that, following the ruling of the European Court of Human Rights (ECtHR) in the death of Madina Hosseini, it is important to change the system because ''as a state we want to respect human rights. This is the complete opposite of what Prime Minister Andrej Plenković and the Croatian representative in the Strasbourg court, Štefica Stažnik, claim''. Namely, they both assure that this is not a systemic problem, because Croatia has not been declared responsible for the death of little Madina, but for an ineffective investigation into her death.

The six-year-old girl, Madina Hosseini was killed in November 2017 when she was hit by a train on the Croatian-Serbian border after her family had allegedly been denied the opportunity to seek asylum by Croatian authorities and were ordered to return to Serbia via the tracks.


Madina Hosseini (Photo: Family album)

The ECtHR confirmed that in Madina's case, Croatia had violated rights under the European Convention on Human Rights. As stated in the verdict, Madina's right to life, humiliated her family's children by keeping them in custody, illegally deprived the whole family of their liberty, and collectively expelled part of the family from Croatia and denied them access to a lawyer.

Why is this verdict significant?

In an interview with Hina, Ombudswoman Tena Šimonović Einwalter commented on the significance of the verdict itself and the moves that Croatia needs to make in order to execute the verdict of that court.

Speaking about the human rights situation, Šimonović Einwalter announced that, in addition to the annual report already published, she would soon present a special report to the Croatian Parliament on the impact of the epidemic in the last two years on human rights and equality.

HINA: The ECtHR passed a verdict deciding in this particular case, but can it be said that it also said that Croatia is systematically violating the rights of refugees at the borders?

ŠIMONOVIC EINWALTER: It is difficult for the ECHR to say that in that way, in those words. This verdict addresses the issue of the treatment of Madina's family, in this specific situation. But the court also says that the case "raises several important issues about migration control by the Croatian authorities" and that "the impact of this case goes beyond the special situation of the family". The court also took into account a number of earlier allegations of violations of migrants' rights.

Some sentences from the decision, it seems to me, therefore indicate that the impact of the case goes beyond this particular family situation and I think it is good to read it that way if we want changes. It is important to carefully analyze and seriously implement this court decision and change the system because as a state we want to respect national law, European law, international law, and human rights. Is there the will to do it? I really hope so.

HINA: The court found that the convention had been violated because the police at the border did not assess the individual situation of the refugee family before they were deported to Serbia. It did not accept the state's argument that the refugee family was crossing the border illegally. What does this mean now, since the beginning of that refugee crisis, it has been persistently emphasized that we are "defending" ourselves at the borders from those who break the law by crossing them?

ŠIMONOVIĆ EINWALTER: In fact, the legal situation was clear even before this decision. It is often pointed out that the police should guard the border, that illegal crossing of the state border is prohibited, and that is exactly what the law says. At the same time, it is legally defined that persons have the right to seek international protection, regardless of the manner of entry into the country. Therefore, there must be an individualized procedure. It includes, because of the risk of violating international law, the possibility that people who are in a specific situation because of fleeing war and exposure to practices such as torture or the death penalty in their countries of origin have the right to seek international protection. It is also needed by people who are victims of human trafficking, rape, or severe violence.

You can't know if that person will have the right to asylum without conducting a procedure - to ask who that person is, where he is fleeing from and why, it is not written on anyone's forehead. As a first contact, officials should try to identify vulnerable people who may want to apply for international protection.

This is a matter of individualized approach, where special vulnerability is sometimes visible at first, for example in children or unaccompanied children, and the best interests of the child must take precedence.


Tena Šimonović Einwalter (Photo: Zeljko Hladika/PIXSELL)

HINA: In the next six months, Croatia must conduct an effective investigation into Madina's death, but also draw up an action plan to eliminate the violations identified by the court. Will this change the situation and the protocol for treating refugees?

ŠIMONOVIĆ EINWALTER: Within six months, but maybe earlier, the Office of the Representative of the Republic of Croatia before the ECtHR must adopt an action plan. In this regard, through a body in which representatives of various institutions participate, we can also give expert opinions and proposals, and it includes ministries, courts, the Constitutional Court, and others. The point of the ECtHR judgments is justice for individuals, but also to change the practice, if necessary the laws, in order to respect the legal standards of human rights protection. It can also be a question of, for example, how to conduct an effective investigation, which was an important issue in this case. We have also heard that Minister Davor Božinović has publicly stated that the responsibility in such cases is on the system and that we need to see what are the things that can and should be corrected.

HINA: Has the Ukrainian crisis shown that those fleeing the war can be treated differently?

ŠIMONOVIĆ EINWALTER: We are currently witnessing great solidarity of citizens towards Ukrainians, but I would like to remind you that we saw this solidarity of citizens in 2015 as well - and then many were ready to help. However, now the European Union has reacted differently than in 2015. The Temporary Protection Directive existed even then, and could theoretically be activated. It is a political decision at the EU level.

With the recent activation of the directive, IDPs from Ukraine have a much simpler and faster procedure. What can be discussed is whether it should have been activated in the past. Could it have been any different for some other people fleeing another war? I believe that a new level of solidarity and assistance to refugees is now being seen. In an ideal world, I would like to see Europe respond in this way to all refugees fleeing the horrors of war.

HINA: Your report makes recommendations on how to address the shortcomings you have identified in the implementation of human rights. Judging by the number, a total of 156 recommendations, a lot of work, what needs to be worked on the most?

ŠIMONOVIĆ EINWALTER: There are many problems, and I would like to point out the problems of access to health care and health services, the need for stronger support and protection of senior citizens, the issue of access to information for citizens regarding rights, and how to exercise them. It is necessary to ensure that the institutions suit them, that the procedures do not take too long, that they are less formalistic, and that their work shows the understanding that they are there for the citizens, to provide them with an easier way to exercise their rights. In some areas, the problems are long-lasting, I have been working in this institution for 14 years and changes are happening slowly.

We also point out systemic problems analytically and comprehensively. What I am always happy about are the improvements, and of course, there are some, especially when fulfilling some of our recommendations, either in an individual case or these systematic ones from the annual report, lead to a higher level of rights for citizens. That is the point of these recommendations. From the Report for 2020, 43 percent of the recommendations were implemented, which is a big jump compared to 2019, when 20 percent of them were implemented. I hope this trend continues.

HINA: In times of insecurity, the most socially vulnerable groups are particularly hard hit. How should the state act on this?

ŠIMONOVIĆ EINWALTER: Those who have been ill before always suffer the most. It will be the same now - it is the poorer senior citizens, but also those who live near the poverty line. Single-parent families and those with three or more children are in a difficult position.

Government measures to alleviate the situation are welcome, but they will certainly not remove all concerns from citizens. It is important to monitor at the state level whether the measures should be corrected, with special attention to the impact on those who find it particularly difficult, and we will monitor this as well.

HINA: A large number of complaints were related to the use of covid certificates and vaccinations. How has the epidemic affected equality and human rights in Croatia?

SIMONOVIC EINWALTER: We have been through a lot in these two years. The epidemic is still actually going on, so while many of us are feeling relieved, no one knows what will happen in the fall. These experiences should be used to learn and strengthen the key sectors: health, social, education, and civil protection. We are currently finalizing a special report on the impact of the epidemic on human rights and equality in those two years, which we will soon submit to Parliament. The purpose of this report is to see what the effects of the epidemic are and how to manage it. It has changed our lives and we need to see what can be done better and differently.

That is why we analyze the impact on certain human rights and certain groups of citizens because some have fared worse. These are the elderly, but they are not the only ones. There is also the impact of poverty and the availability of different services. The fact is that not everyone could be vaccinated, for health reasons, and at the same time, we had the question of the availability of testing, which was not the same for everyone. There are also lessons about informing citizens, given the fake news and misinformation. We will include all of this in the recommendations, and I hope that this report will be the basis for positive progress towards strengthening the resilience of society in the future, to the epidemic, but also to other possible crises.

For more, check out our politics section.

Tuesday, 5 April 2022

Final Verdict of the ECHR: Croatia Responsible for Death of Madina Hosseini

April 5, 2022 - The European Court of Human Rights rejected Croatia's request to reconsider the case of the family of little Madina Hosseini, which confirmed the previous verdict and the responsibility of the Republic of Croatia for the tragedy arising from it. Interior Minister Davor Božinović says his resignation is ''not on the table'' following the ruling. reports that, in the tragic death of six-year-old Madina Hosseini, the European Court of Human Rights (ECHR) last year found the Republic of Croatia responsible for numerous human rights violations under the Convention for the Protection of Human Rights and Fundamental Freedoms: the right to life, the prohibition of torture and inhuman treatment, the prohibition of the collective expulsion of aliens, the right to security and liberty and the right to institute legal proceedings. The Republic of Croatia requested a reconsideration of the case, but the court rejected the request on Monday. The Center for Peace Studies reported on its Facebook page, stating that the case of little Madina Hosseini is finally over.

''The Grand Council of the European Court of Human Rights rejected the request of the Republic of Croatia to reconsider the case of little Madina's family and thus reaffirmed the verdict that the Republic of Croatia violated Madina's right to life, treated children inhumanely, kept the whole family illegally, and part of the family was collectively expelled from Croatia, and after all that, they were denied access to lawyers'', Center for Peace Studies shared on their Facebook page.


Madina Hosseini (Photo: Hosseini family)

The Office of the Croatian Representative before the European Court of Human Rights also informed that the verdict had been passed and that it had become final by rejecting the Croatian request.

''On April 4, 2022, a committee of five judges of the Grand Council of the European Court of Human Rights rejected the request of the Republic of Croatia to submit the case of MH to the Grand Council. Thus, the judgment of the Council of 18 November 2021 became final and the procedure of its execution will follow'', the Office said in a statement.

The full verdict of the European Court of Human Rights in the case of little Madina Hosseini on 18 November 2021 can be read (in Croatian) in Tportal's original article.

This judgment of the ECHR confirms various problems that many actors have been pointing out for many years and about which we report to the Croatian Parliament, the competent authorities, and the public. This primarily refers to the lack of an effective investigation into allegations of human rights violations of migrants, which is necessary in order for the authorities to dispel suspicions or confirm the allegations, Ombudsman Tena Simonovic Einwalter said in November last year.

In this case, it also referred to the work of the police, the State Attorney's Office, and the judiciary, with the ECHR assessing the effectiveness of the investigation in a different way than the Constitutional Court and, among other things, the way in which the effectiveness of the investigation was examined was indicated in a separate opinion by three judges. To maintain the rule of law in which no one, especially the police, can be above the law, an effective investigation is crucial, taking into account information provided by the mother and police officers about the tragic event, which includes all available information to establish the factual situation (including recordings of thermal imaging cameras, data on the movement and location of police officers by recording the signals of their mobile devices, police vehicles via GPS devices or members of the Hosseini family via their mobile devices), said Ombudswoman Simonovic Einwalter. According to the judgment of the ECHR, and as we ourselves warned, the competent authorities failed to do so, she added.

In the part related to the restriction of freedom of movement of Madina's family with eight children, they warned that it was not clear which procedures were used during the individual assessment of whether other measures, alternatives to detention, could have served the same purpose. In doing so, the proceedings themselves were conducted in the English language, which M. Hosseini's mother did not understand.

How has the Croatian Interior Minister responded?

The Center for Peace Studies issued a statement today stating that "after this strong and final confirmation of the verdict, the Government of the Republic of Croatia and Prime Minister Andrej Plenković can no longer turn their heads, but must urgently dismiss those responsible led by Interior Minister Davor Božinović''.


Minister of Interior, Davor Božinović, at the US-Croatian Forum in Zagreb which began yesterday. (Photo: Igor Soban/PIXSELL)

Following the ECHR ruling, Božinović said today that "his resignation is not on the table", N1 reports.

"As a minister, I can say, as I said, that it is a tragedy. That it affects us all. Certain investigative actions have been carried out, the court has concluded what it has concluded and we need to take measures to improve the system. My resignation is not on the table."

He said the responsibility in such cases is on the system.

"We have to see what are all the things that can and should be corrected. This was the case in other cases as well. The point of these judgments is to actually fix the system and it is always a matter of correcting what is stated as a defect. Either through certain solutions when it comes to regulations or by changing some practices. The function of the court is precisely to point out such shortcomings", said the Minister.

Journalists also asked the minister if his position was "on ice" because of this verdict.

"Reconstruction is something the prime minister will decide on."

For more, check out our politics section.

Monday, 17 January 2022

ECHR Awards Convicted War Criminal Compensation for Unfair Trial

ZAGREB, 17 Jan 2022 - The European Court of Human Rights (ECHR) has awarded Marinko Pozder, convicted in absentia for war crimes committed in Škabrnja, a compensation of €4,000 for non-pecuniary damage and €2,000 for the costs of the proceedings due to the violation of his right to a fair trial, ECHR has reported.

ECHR notes that the court's decision is final.

Pozder was convicted in absentia in 1998 and sentenced to 20 years in prison for war crimes against civilians in the village of Škabrnja in the Zadar hinterland, after which he called for a retrial in 2012 which was rejected by the Supreme Court.

The ECHR determined that Pozder participated personally in the early stages of the investigation against him prior to being released from prison and exchanged as part of a prisoner exchange agreement.

Hence he had some knowledge about the proceedings against him, however, he was never subsequently called to trial nor did the Croatian authorities inform him that the proceedings were continuing against him, the court said and added that it could not conclude whether Pozder attempted to avoid the trial or whether he waived the right to appear before a domestic court.

For more, check out our dedicated politics section.

Wednesday, 8 December 2021

Turkish Businessman Sues Croatia Over Geothermal Power Plant Project

ZAGREB, 8 Dec, 2021 - Turkish businessman Muharrem Balat and his Croatian subsidiary BLT have sued Croatia to the European Court of Human Rights (ECHR)  following a series of court decisions in which his right to enjoy his property and access to a fair trial have been violated.

BLT represents the Turkish MB Holding, which has launched the first geothermal power plant in Croatia at Velika Ciglena near Bjelovar.

Balat's former associates and once minority partner Dragan Juril are locked in a legal dispute over the power station, which is due to receive more than HRK 1 billion in state incentives until 2031.

Jurilj and his Geothermal Solutions, which held a 20% share of the company Geoen d.o.o., as the project leader, managed to oust the Turkish investor, who owned 80% of the company, from the Zagreb Commercial Court register and take over Geoen.

The ownership of the land on which the power station was built has also been transferred to the minority partner, Jurilj.

According to media reports, the two parties to the dispute have been quietly "at war" for the past few years, but problems escalated when the two took the issue to the courts and filed about 30 lawsuits against each other.

The application before the ECHR says that the High Commercial Court, in its ruling of 26 February 2021, incorrectly applied substantive law denying BLT effective legal protection before the court.

The main issue is that BLT's ownership stake in Geoen was removed from the court register and transferred to the minority owner Geothermal Solutions.

BLT claims that the company's rights have been violated, adding that as the majority owner it provided the financing for the construction of the power plant and the know-how.

Balat has turned to the ECHR because a complaint filed with the Constitutional Court was unsuccessful. The Constitutional Court decided that it would not deal with this case and BLT claims that it was not given access to minimum legal protection regarding its share in Geoen.

Jurilj, on the other hand, denies that the Turkish partner was not given access to a fair trial. "All the processes are legitimate and each investor in Croatia is obliged to respect final court rulings, whether they are satisfied with them or not," said Jurilj.

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Thursday, 18 November 2021

ECHR: Croatia Ordered to Pay Family of Killed Afghan Girl €40,000 in Compensation

ZAGREB, 18 Nov 2021 - The European Court of Human Rights (ECHR) on Thursday held that the investigation into the death of a six-year-old Afghan child who was hit by a train, had been ineffective and ruled that Croatia pay her family compensation of €40,000 and €16,700 in court costs.

The six-year-old girl, Madine Hosseini was killed in November 2017 when she was hit by a train on the Croatian-Serbian border after her family had allegedly been denied the opportunity to seek asylum by Croatian authorities and were ordered to return to Serbia via the tracks.

Madine and her family were in a group of migrants who tried to enter Croatia from the Serbian municipality of Šid.

ECHR determined that there had been several violations of the European Convention for Human Rights.

"The Court found that the investigation into the death had been ineffective, that the applicant children’s detention had amounted to ill-treatment, and that the decisions around the applicants’ detention had not been dealt with diligently," ECHR said on its website on Thursday.

The court also held that some of the applicants had suffered a collective expulsion from Croatia and that the State had hindered the effective exercise of the applicants’ right of individual application by restricting access to their lawyer among other things.

The court has ordered Croatia to pay the family €40,000 non-pecuniary damage and €16,700 in respect of costs and expenses.

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Wednesday, 7 July 2021

Professor Davor Derenčinović Elected as New European Court Judge of Human Rights

June 7, 2021 - Davor Derenčinović, Head of the Chair of Criminal Law at the Faculty of Law in Zagreb has been elected as a Croatian judge of the European Court of Human Rights.

Jutarnji List quoted professor Davor Derenčinović, who will take up the position of European judge for human rights on January 2, 2022, as saying: ''It is a great thing to be elected a judge of the European Court of Human Rights. It is an honorable and responsible function. I am the third judge from Croatia. Professors Nina Vajić and Ksenija Turković, whose term is expiring, were the first Croatian jurists to be elected for the position. This is also a recognition for the Faculty of Law in Zagreb because all three of us have come from that Faculty.''

As reported by Jutarnji List, Derenčinović points out that the positive thing is that the Council of Europe assessed that the list of Croatian candidates is of very high quality, since all three passed the first filters. Namely, in addition to Derenčinović, the candidates were Lovorka Kušan, a judge of the Constitutional Court, and Marin Mrčela, a judge of the Supreme Court. The final election was put to a vote by the Parliamentary Assembly of the Council of Europe. Out of 207 votes, 4 were invalid, and of the remaining Derenčinović received the most, 133 votes, followed by Lovorka Kušan with 65 and Judge Mrčela with only 5 votes.

When asked what his expectations are for his new position, Derenčinović said that these are advocacy for the rule of law, for human rights, which is the focus of the Council of Europe, and noted that the European Union, which has 830 million inhabitants, is fraught with many challenges. About whether she expects almost all cases related to the right of women to abortion, about which there are current controversies in the European Parliament and divisions after the Croatian MEP Predrag Fred Matić presented a resolution on the general right to abortion, Derenčinović gave a principled answer that the European Court of Human Rights deals with all topics, according to all relevant articles of the Convention. 

''I cannot take any position on anything, because everything can be the subject of a decision in the Court'', said Derenčinović, who, he says, is not sorry to leave the Department of Criminal Law because he does not leave it forever. Namely, after the expiration of his nine-year term in Strasburg, he intends to return to lectures at the Faculty of Law in Zagreb, and Judge Turković, whose term expires, is returning to the same chair.

Derenčinović was born in 1970 in Zagreb, where he also graduated from the Faculty of Law and received his doctorate in 2000. He studied in the USA, Germany, and Great Britain. He lectured at postgraduate studies in Croatia at the Faculties of Law in Rijeka and Osijek, then in Sarajevo, Mostar ... His rich biography also states that he was an invited lecturer in the USA, Slovenia, and Great Britain.

He was the president of the Croatian Association for Criminal Sciences and Practice, participated in legislative work, and wrote legal comments. He is the Vice-President of GRETA, the Council of Europe's anti-trafficking expert body. He has been an ad hoc judge at the Court of Human Rights for almost ten years, has been a member of expert groups at the Council of Europe for the fight against terrorism and corruption, and has been a member of the Ethics Election Commission on several occasions. In his CV, he also mentions membership in the Commission of Iustitia et pax of the Croatian Bishops 'Conference and in the Legal Committee of the Commission of Bishops' Conferences of the EU (COMECE). He is the President of the Croatian Academy of Legal Sciences.

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Wednesday, 2 June 2021

Croatia Sued by European Human Rights Court in Strasbourg for Coronavirus Lockdown Measures

June 2, 2021 – One Croatian man is suing Croatia through the European Human Rights Court for the lockdown measures imposed last year.

The last 15 months were difficult for many people around the world. COVID19 related lockdowns and restrictions made life less than enjoyable for the majority of the population. It wasn't easy living with the fear of the virus and the potential effects of the disease it causes. Lack of socialisation, financial problems and spending long periods of time indoors were perhaps even worse. Taking all this into account, it is easy to understand how the situation frustrated many. Some even decided to sue their governments for a breach of human rights.

The Case reports a gentleman from Croatia is suing the government for restrictive measures implemented last year. He started the lawsuit back in April of 2020. Measures that restricted travel outside of the area of residence and those prohibiting gatherings in groups larger than five persons are the ones he has the most problems with. According to him, these measures encroached on his civil rights and prevented him from practicing his religion. European Convention on Human Rights protects civil and religious freedoms. European institutions take this document very seriously. This is why Croatian representatives with the European Court of Human Rights will have to speak on behalf of the Croatian government and respond to the accusations.

Croatian Constitutional Court already confirmed all the decisions made during the COVID19 pandemic were justified and were not unconstitutional. According to them, these measures were important in preventing large-scale epidemics and minimising human casualties. Still, not everyone is convinced of the legitimacy of these decisions. Croatia is not the only country where governments are being sued for civil rights infringement. COVID19 might continue causing damages to national governments way after the pandemic subsides. The unprecedented situation the world found itself in called for immediate action. What will be the long-term effects of these decisions, we are still to discover.  

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