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

By Irina Fehr1 and Jill Alpes2

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

Pushbacks as crimes or as human rights violations

States committing cross-border pushbacks engage in multiple human rights violations. In Europe, pushbacks are mostly litigated as violations of the prohibition of torture and the principle of non-refoulement, the prohibition of collective expulsions, and depending on the circumstances, as violations of the right to life – all of which are provisions enshrined in the European Convention on Human Rights (ECHR, see e.g. case law here, here, here, and here).  Concurrently, state officials committing pushbacks frequently violate domestic law. Consequently, lawyers who want to challenge pushback practices also file criminal complaints against respective officials, encompassing offences like bodily injuries, thefts, abuse of position and authority, and – again – torture and other cruel, inhuman, and degrading treatment, which is both a widely recognized criminal offence and human rights violation.

Domestic criminal and international human rights law form separate frameworks applicable to pushbacks. Human rights procedures primarily seek to establish state responsibility for safeguarding the fundamental rights of those within their jurisdiction. In contrast, criminal law provides a domestic mechanism for assessing individual liability in cases of grave misconduct and violations of criminal statutes. Nonetheless, these frameworks interconnect in certain aspects. For instance, widely recognised human rights such as the right to life and the prohibition of torture, enshrined in articles 2 and 3 ECHR, necessitate effective investigations, constituting procedural components of the respective human rights. In other words, states are obligated to conduct rigorous investigations into cases of death and torture to ensure human rights compliance, which typically follow domestic criminal protocols.

The challenges of evidencing and litigating pushbacks in the Croatian border context

Since Croatia joined the EU in 2014, the country has been responsible for controlling the longest external land borders of the Union; over 1,350 km demarcate the EU’s South-Eastern borders with Bosnia-Herzegovina, Serbia, and Montenegro. Unlike in neighboring Hungary that has erected barb wired border fences, Croatia’s borders are either composed of natural rivers or densely forested areas. They are hard to cross and only scarcely inhabited, and at times still contain mined grounds dating back to the Yugoslav war. When, in 2015, Croatia became a candidate to joining the Schengen area, it needed to prove its capability to control its borders and prevent unauthorised entries. Coinciding with higher arrivals of people-on-the-move, Croatia only had a brief period of relatively open borders between late 2015 and early 2016. Since then, pushbacks have become systematic, echoing illegal and ‘closed door’ bordering practices at other external EU borders.

Despite these challenging circumstances, a network of NGOs has heavily invested into documenting pushbacks at the Croatian border since 2016. The Border Violence Monitoring Network (BVMN) has assembled a vast amount of evidence, mostly including testimonies of pushback victims, information gathered by frontline responders, as well as photos from suffered injuries and border sites. This material documents how state officials confiscated and destroyed the personal belongings of people-on-the-move, physical mistreatment, as well as the dangerous paths that people are forced to take on their way back to Bosnia-Herzegovina and Serbia. In addition, BVMN has produced over 200 hours of video material catching such violent pushbacks at the Croatian borders on tape.

Substantial documentation, however, does not automatically result in good evidence for court cases, nor in court cases at all. The anonymised testimonies portray pushbacks from the victims’ viewpoint and often lack supplementary third-party statements or corroborating evidentiary material. Further aspects complicate criminal litigation: as pushback victims want to continue their journey and try to cross borders again, they often lose contact with lawyers willing to litigate their cases. Even when contact is maintained, pushback survivors fear that filing a complaint against state officials might hinder their chances of receiving asylum in Croatia and thus often prefer not to give their consent for potential criminal procedures.  

Ineffective criminal investigations as the steppingstone to the success of M.H. v. Croatia

The most prominent pushback case in Croatia centers around Madina Hussiny, a six-year-old Afghan girl who was tragically killed on November 21, 2017. Following a pushback, she was struck by a train while walking with her family along the tracks from Croatia back to Serbia. Her case was exceptional in many ways: the lawyer was able to maintain contact with the family because they successfully crossed back to Croatia after the incident. The family consented to initiating proceedings. As a result, a criminal complaint could be filed against unidentified police officers. Following its dismissal on grounds of lacking evidence, the family pursued private prosecution demanding a criminal investigation, which was rejected again on the same grounds. Next, the family’s lawyer filed a constitutional complaint about the lack of an effective criminal investigation. The Constitutional Court, however, reiterated that an effective investigation had occurred, marked by inquiries that yielded no reasonable suspicion for the commission of a criminal offence.

Upon referral to the European Court of Human Rights (ECtHR), judges found – in contrast to the Constitutional Court – that an effective criminal investigation had indeed not taken place. The very fact that the Croatian authorities had not effectively investigated and procured the respective evidence constituted a human rights violation (procedural component of article 2 ECHR), even if the judges abstained from concluding whether the officers had negligently caused the death of Madina or not  – because there was no conclusive evidence. In doing so, the ECtHR recognised the state’s burden of proof, building on the prima facie evidence provided by the applicants. Hence, evidence and the state’s duty to obtain it emerged as a pivotal nexus between the domestic criminal procedure and regional human rights adjudication (see similar case here).

The limits of criminal law despite the state’s responsibility to gather evidence

Since the famous Madina case, about ten criminal complaints have been filed in Croatia against unknown state officials for pushback-related offences, mostly upon the initiative of the Center for Peace Studies, a Croatian NGO. After a criminal complaint is filed, the police usually conducts an initial inquiry, and in case of reasonable suspicion that a criminal offence occurred, an investigation is carried out on behalf of the state attorney. Thus, state authorities are responsible for producing evidence about the incidents in question. Accordingly, there is no legal obligation for the injured party to submit evidence when filing a criminal complaint. This could in theory constitute a major advantage for addressing pushbacks through criminal law: state authorities are obliged to investigate and gather evidence on incidents that are hard to document for private parties.

But what if the authorities do not conduct proper investigations? This was the case for Madina’s death. Most of the pushback-related complaints in Croatia are currently either stuck in the pre-investigation phase, often significantly surpassing stipulated procedural deadlines, or they have been rejected because of the suspicion of a criminal offence being found missing. Consequently, none of these complaints have yielded indictments or criminal charges.

Effects of ECtHR judgments for criminal investigations at the domestic level

In the face of meagre results at the domestic level, one might ask what benefits a criminal law approach still offers for pushback litigation. A significant merit lies in its interplay with regional human rights litigation. Regarding Madina’s case, the initial criminal procedure facilitated the case’s elevation to the ECtHR. Furthermore, the ECtHR verdict compelled Croatia to formulate an action plan for the implementation of the Court’s judgment. This, in turn, prompted a reopening of the criminal investigation into Madina’s death, which is presently ongoing. Contrary to an ordinary criminal investigation, it is now conducted by a special Croatian task force. As part of the supervision of the execution of ECtHR judgments, NGOs have the possibility to communicate their recommendations and concerns about the government action plan, including the criminal investigation into Madina’s death (cf. Rule 9). Despite Council of Europe oversight, however, the re-opened investigation has surpassed the deadline by which the state attorney should have made a decision on the criminal complaint and it has remained in the hands of the police, leading civil society organisations to continue to doubt its efficacy and added value. Most importantly, the investigators have made no efforts to collect additional data, such as questioning the train driver or the police officers, or investigating why the video material that could have attested the family’s presence in Croatia before the accident could not be retrieved.

Oversight procedures by the Council of Europe’s Committee of Ministers for the implementation of ECtHR judgments expand the impact of ECtHR rulings beyond the specificities of a given case. As part of general measures to implement the judgment of Madina’s case, the Croatian government has proposed in its action plan educational programs for members of the State Attorney’s office and the issuing of an instruction to police units on how to ensure effective investigations. However, the Government does not question the overall effectiveness of its investigations, nor the Constitutional Court’s practice in dealing with the respective remedies.  The Croatian Ombudswoman and NGOs such as the Center for Peace Studies voice continuous concerns about the structural deficiencies when criminal complaints are filed against police officers, finding the general measures listed in the action plan as insufficient.


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

1Irina Fehr is a PhD candidate at Tilburg University researching crimes conducted during migration control and criminalisation of migration at external EU borders in Croatia. This blog post draws on her ethnographic fieldwork in Serbia, Croatia, and Bosnia in spring 2023, which included participant observation while volunteering with a migrant solidarity grassroot organisation in the border area, as well as semi-structured and ethnographic interviews with legal experts and practitioners, NGO representatives, monitoring bodies, and political stakeholders in Croatia. She would like to thank everybody that contributed to the fieldwork, including the migrant solidarity NGO that welcomed her as a volunteer, the many people-on-the-move who experience the realities of the European border regime on a daily basis, the interview partners and particularly the Center for Peace Studies, along with Tilburg University and the Catherine van Tussenbroek Foundation which financially supported the fieldwork.

2Jill Alpes is member of the ERC-funded DISSECT research group and senior researcher at the Human Rights Centre at Ghent University. Her research looks at the production and assessment of evidence for litigating pushbacks at European borders. Her research is based on interviews with civil society organizations and litigators, as well as participatory research on the pushback corridor Cyprus-Lebanon-Syria.

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