N.O. v. CROATIA

FIFTH SECTION

DECISION

Application no. 3745/18
N.O.
against Croatia

The European Court of Human Rights (Fifth Section), sitting on 18 April 2024 as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Mattias Guyomar, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 3745/18) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 January 2018 by a Turkish national, Mr N.O. (“the applicant”), who was born in 1970 and lives in Bern (Switzerland) and was represented by Ms S. Bezbradica Jelavić, a lawyer practising in Zagreb;

the decision to give notice to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, of the complaints concerning the applicant’s extradition detention and his request for reimbursement of costs incurred in the extradition proceedings, and to declare inadmissible the remainder of the application;

the decision not to have the applicant’s name disclosed;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The application principally concerns the applicant’s detention in Croatia with a view to his extradition to Türkiye, even though he had previously been granted refugee status in Switzerland.

2.  In 2002 the applicant was arrested in Türkiye on terrorist charges related to the activities of the PKK (the Workers’ Party of Kurdistan). In September 2003 he had been released from pre-trial detention, after which he fled Türkiye.

3.  In 2004 the applicant lodged an asylum request in Switzerland. In 2005 the request was dismissed by the application of the exclusion clause under the relevant Swiss asylum law because the applicant had participated in activities which had led to killings. At the same time his expulsion was deferred given that he otherwise satisfied all the requirements for being granted refugee status in Switzerland. A certificate issued by the Swiss authorities on 28 July 2017 indicated that the applicant held refugee status in Switzerland.

4.  Meanwhile, on 18 July 2017 the applicant was arrested in Croatia based on an international arrest warrant issued by Türkiye. The Vukovar County Court dismissed a request for the applicant’s extradition based on his refugee status in Switzerland, but the Supreme Court quashed that decision. In the fresh round of proceedings, the courts found that the applicant could be extradited to Türkiye. The Supreme Court notably held that the fact that the applicant had been granted refugee status in Switzerland was irrelevant since that country was not a member of the European Union.

5.  On 10 July 2018 the Constitutional Court quashed the lower courts’ decisions on the ground that, having been granted refugee status in Switzerland – a State belonging to the “Dublin” system – the applicant enjoyed protection on the territory of European Union Member States. The Croatian authorities, which had from the outset been made aware of the applicant’s refugee status, were thus obliged to respect it. The Constitutional Court held that the applicant’s extradition to Türkiye would be in breach of the principle of non-refoulement. It also held that, in view of the violations of the constitutional rights found (guaranteed by Articles 32(2) and 141.c of the Croatian Constitution), it was not necessary to examine the applicant’s complaint under Article 5 § 1 (f) of the Convention. However, it urged the authorities to examine the need for his further detention.

6.  On 25 July 2018 the authorities dismissed the request for the applicant’s extradition and, after 372 days, released him from detention.

7.  On 13 December 2018 the applicant lodged a request with the Vukovar County Court to reimburse him the costs of his legal representation incurred in the extradition proceedings.

8.  On 20 December 2023, following the applicant’s repeated requests to decide on his claim for reimbursement of costs, the Vukovar County Court granted that claim in full. On 27 December 2023 the money was paid to the applicant’s attorney’s bank account.

9.  Meanwhile, on 1 June 2020 the applicant instituted civil proceedings against the State in which he sought 186,000 Croatian kunas (24,800 euros (EUR)) as compensation for the mental pain and anguish suffered on account of the fact that the authorities had kept him in detention for 372 days with a view to extraditing him to Türkiye, even though they had from the outset been aware of his refugee status in Switzerland.

10.  On 22 December 2021 the Zagreb Municipal Civil Court rendered a judgment acknowledging that, having regard to the Constitutional Court’s findings outlined in paragraph 5 above, the applicant had suffered non‑pecuniary damage for which he should be compensated. Specifically, the court accepted that detention had caused the applicant mental suffering, emphasizing that unjustified deprivation of liberty generally constituted grave breach of one’s rights. Having regard to the importance of the protected right which had been violated, the court deemed it appropriate to award the applicant EUR 12,400 in non-pecuniary damages together with the accrued statutory default interest.

11.  Both the applicant and the State Attorney’s Office appealed against that judgment and the proceedings are currently pending before the appellate court.

12.  Before the Court the applicant complained, under Article 5 § 1 (f) of the Convention, that the Croatian authorities had kept him in detention for 372 days with a view to extraditing him to Türkiye, even though they had from the outset been informed of his refugee status in Switzerland.

13.  In his submissions of 20 October 2021, the applicant further complained under Article 6 § 1 of the Convention about the domestic court’s failure to decide on his request for reimbursement of costs of his legal representation incurred in the extradition proceedings.

14.  Lastly, in his observations of 16 September 2022, the applicant also complained that the fact that he had spent 372 days in extradition detention, although he had been granted refugee status in Switzerland, had caused him mental suffering in breach of Article 3 of the Convention.

THE COURT’S ASSESSMENT

15.  The Government invited the Court to strike the application out of its list of cases on the grounds that the applicant had permanently left Croatia on 27 July 2018, when the proceedings before the domestic authorities and the Court were still pending, and that afterwards his lawyer had not submitted any document to the domestic authorities or to the Court signed by the applicant. There was therefore no evidence that the lawyer was still in contact with the applicant or that the applicant wished to pursue his case before the Court. The applicant’s lawyer replied that she was in contact with the applicant and that she kept him informed of the status of his case before the Court.

16.  The Court reiterates that maintaining contact between the applicant and his or her representative throughout the proceedings is essential both in order to learn more about the applicant’s particular situation and to confirm the applicant’s continuing interest in pursuing the examination of his or her application (see Sharifi and Others v. Italy and Greece, no. 16643/09, § 124, 21 October 2014, and V.M. and Others v. Belgium ((striking out) [GC], no. 60125/11, § 35, 17 November 2016). In the present case, having regard to the fact that on 16 September 2022 the applicant’s lawyer submitted to the Court documents regarding the case signed by the applicant on 10 May 2022, the Court accepts that the applicant is acquainted with the status of his case and that he wishes to pursue it. The Government’s strike-out request must therefore be dismissed.

17.  The Government challenged the admissibility of the applicant’s complaint under Article 5 of the Convention on two grounds. They submitted that he was no longer a victim of the violation alleged and that his complaint was premature. Notably, they argued that the Constitutional Court had acknowledged the breach of Article 5 and that the applicant had instituted civil proceedings for damages.

18.  The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Milanković and Bošnjak v. Croatia, nos. 37762/12 and 23530/13, § 109, 26 April 2016, and the references cited therein).

19.  In the present case, although the Constitutional Court found that the domestic authorities had failed to properly take into account the fact that the applicant had been granted refugee status in Switzerland when deciding on his extradition to Türkiye, it did not examine the applicant’s complaint under Article 5 § 1 of the Convention (see paragraph 5 above).

20.  However, the Court notes that after the extradition request had been refused and the applicant was released from detention, he brought a civil action against the State seeking compensation for the non-pecuniary damage suffered on account of his unjustified detention (see paragraph 9 above).

21.  In those civil proceedings the first-instance court awarded the applicant EUR 12,400 in non-pecuniary damage together with the accrued statutory default interest (see paragraph 10 above). That court acknowledged that, having regard to the Constitutional Court’s findings that the competent authorities had failed to properly consider the applicant’s refugee status in Switzerland when deciding on the extradition request, the extradition detention had caused the applicant mental suffering. It emphasized that unjustified deprivation of liberty constituted a grave breach of one’s rights.

22.  The Court notes that the civil proceedings in question are still ongoing (see paragraph 11 above). It has no reason to doubt that the national courts, including the Constitutional Court if need be, will deal with the applicant’s case in accordance with the relevant criteria established by the Court (see, for example, Eminbeyli v. Russia, no. 42443/02, § 48, 26 February 2009; and Shiksaitov v. Slovakia, nos. 56751/16 and 33762/17, §§ 76-84, 10 December 2020, and see also the Constitutional Court’s decision no. U-III-6499/2021 of 15 February 2022 in which that court examined the lawfulness of a complainants’ extradition detention under Article 5 § 1 of the Convention).

23.  Accordingly, having regard that the civil proceedings for damages are still pending, the applicant’s complaint under Article 5 § 1 of the Convention is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention.

24.  With regard to the applicant’s complaint concerning the domestic court’s failure to decide on his request for reimbursement of the costs of his legal representation incurred in the extradition proceedings, the Court notes that the competent domestic court eventually decided on that request (see paragraph 8 above). The Court shall thus examine this complaint as one raising an issue of excessive length of proceedings.

25.  The Government argued that the applicant had not exhausted domestic remedies in that he had not lodged a constitutional complaint to complain of the excessive length of proceedings.

26.  Since the applicant raised the present complaint on 20 October 2021 (see paragraph 13 above) and the remedy suggested by the Government, which the applicant did not use, has been effective as of 1 November 2019 (see Kirinčić and Others v. Croatia, no. 31386/17, § 116, 30 July 2020), the Court finds that the Government’s objection must be accepted.

27.  It follows that, even assuming that Article 6 § 1 of the Convention was applicable under its civil limb to the adjudication of costs in the present case, this complaint is in any event inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must therefore be rejected pursuant to Article 35 § 4.

28.  In his observations of 16 September 2022, the applicant for the first time raised a complaint that the fact that he had spent 372 days in extradition detention, although he had been granted refugee status in Switzerland, had caused him mental suffering in breach of Article 3 of the Convention. He specified that he had been detained in a country whose language he did not speak, that he had suffered fear of being extradited to a country where he would be persecuted, and that the entire time he had been separated from his wife and two minor children who had remained in Switzerland. The Government made no comments on this complaint.

29.  Even assuming that the applicant’s detention in the particular circumstances caused him mental suffering reaching the threshold of Article 3 of the Convention, the Court notes that in the civil proceedings instituted before the domestic courts (see paragraph 9 above) the applicant asked for compensation for non-pecuniary damage suffered on account of his detention largely relying on the same arguments as those outlined in paragraph 28 above.

30.  Having regard that those civil proceedings are still pending (see paragraph 11 above), the Court finds that this complaint is in any event premature and that it must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 May 2024.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President