On 16 February 2021, the applicant, a Turkish national of Kurdish ethnicity entered Croatia from Serbia. He had previously been fingerprinted in Greece and issued a re-entry ban by the Greek authorities. On 17 February 2021, he was detained by the Illegal Migration Service of the Zagreb Police (Ministarstvo unutarnjih poslova Republike Hrvatske, Policijska uprava zagrebačka, Sektor za granicu, Služba za nezakonite migracije), issued a return decision with a one-year re-entry ban, and placed in the Ježevo Immigration Centre. According to the arrest report, the applicant waived his right to a lawyer.

On 4 March 2021, the applicant was visited by representatives of the Croatian Ombudsperson, to whom he expressed his intention to apply for asylum on political grounds, stating that he had been subjected to severe physical and psychological violence and a series of politically motivated arrests and court proceedings in Türkiye. On 5 March 2021, the applicant was visited by a lawyer who had been hired by his family and to whom he granted a power of attorney. On various occasions thereafter, the lawyer requested on the applicant's behalf that his asylum application be registered, to be provided with a copy of the expulsion decision and to be allowed to visit his client, which was denied on the grounds that the epidemiological situation and the applicant's COVID-19 infection did not allow such contact.

During detention, without his lawyer present, the applicant signed or wrote statements requesting to be allowed to return to Greece.

On 24 March 2021 the police served the applicant with a new return decision, pursuant to which he was obliged to leave Croatia within 7 days. This decision was not communicated to the applicant's lawyer. The following day, the applicant was released from Ježevo and, according to him, escorted by a plainclothes officer to board a bus bound for North Macedonia.

The applicant lodged a complaint before the European Court of Human Rights (ECtHR) arguing that the denial of access to the international protection procedure and the circumstances of his detention amounted to a violation of Articles 3, 13 and 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth the Convention or ECHR).

The court examined the admissibility of the complaint. Referring to the precedent established in O.M. and D.S. v Ukraine (No 18603/12, 15 September 2022), the court noted that the Croatian authorities, including the officials of the Ježevo Immigration Centre where the applicant was detained, were indisputably aware of the applicant's wish to seek international protection on political grounds in Croatia. The court found that he had expressed his wish before the representatives of the Croatian Ombudswoman and the Head of the Ježevo Immigration Centre, through his lawyer, who sent emails to that effect to the Ježevo Immigration Centre and to the Ministry of the Interior's Asylum Department. The court added that the applicant, both personally and through his lawyer, had told the Croatian authorities that he had been politically persecuted in his country of origin and that, if returned there, he would be killed. Regarding the Government's argument that the applicant had not genuinely wished to seek asylum in Croatia and had merely expressed his intention to apply in order to avoid expulsion, the court reiterated that neither domestic law (as explained by the court in M.H. and others v Croatia, No 15670/18 and 43115/18, 18 November 2021) nor ECtHR case law (e.g. N.D. and N.T. v Spain, No 8675/15 and 8697/15, 13 February 2020), required any particular form in which a request for asylum should be made.

Secondly, the court considered the circumstances of the case: namely that the authorities prevented the lawyer from contacting the applicant on public health grounds, while at the same time interviewing the applicant about his departure from Croatia, inducing him to sign documents requesting return to Greece, issuing a new return decision without informing the lawyer, and disregarding his requests to access the removal procedure. The court concluded that the conditions to waive the rights enshrined in Article 3 of the Convention as interpreted in M.A. v Belgium (No 19656/18, 27 October 2020) were not met and thus considered that the applicant's removal had been forced, engaging the State's responsibility.

Thirdly, the court examined whether the applicant had exhausted all domestic remedies. Recalling D.A. and others v Poland (No 51246/17, 8 July 2021), it reiterated that in removal cases entailing a risk of treatment contrary to Article 3 of the Convention, a remedy is only effective if it has automatic suspensive effect. The court noted that the available ordinary appeals did not have automatic suspensive effect, nor did interim measures before the Constitutional Court to stay the enforcement of the removal order, or an ordinary constitutional complaint against the removal decisions. In the present case, the lawyer's lack of access to his client, to the removal procedure, and to the return decisions, compounded by the absence of any automatically suspensive appeal, rendered the domestic remedies ineffective, thereby allowing the case to be brought directly before the ECtHR.

The court concluded that the complaint was admissible and proceeded to examine the merits. It recalled that the principles concerning the removal of asylum seekers without a substantive examination of their claims, in particular the principle of non-refoulement, were established in Ilias and Ahmed v Hungary (No 47287/15, 21 November 2019), M.A. v Cyprus (No 41872/10, 23 July 2013), and M.S.S. v Belgium and Greece (No 30696/09, 21 January 2011). The court noted that this previous case-law required the removing State to examine whether there is a real risk that the asylum seeker would be denied access to adequate asylum procedures in the receiving third country, protecting him against chain refoulement. The court noted that this assessment must be made ex officio in light of the facts known to the national authorities at the time of removal, even if the receiving country is a party to the Convention, as in the case of North Macedonia (e.g. Sherov and Others v Poland, No 54029/17, 54117/17, 54128/17 and others, 4 April 2024).

The court found that Croatia had failed to assess whether the applicant would have access to effective and adequate asylum procedures if sent to North Macedonia, or whether he would face a risk of chain refoulement and inhuman or degrading treatment. Consequently, it concluded that this procedural aspect of Article 3 of the Convention had been violated (as in S.S. and others v Hungary, No56417/19 and No 44245/20, 12 October 2023).

Concerning the applicant's complaint that the treatment he received during detention in Croatia in the Ježevo Immigration Centre, specifically the disregard of his requests to apply for asylum and restraining contact with his lawyer, also violated Article 3 of the ECHR, the court held that these matters were closely linked to the above findings and that it was therefore redundant to examine them separately.

The court further examined the merits of the applicant's complaint under Article 13 in conjunction with Article 3 of the Convention, concerning the right to an effective remedy, and for the reasons set out in its admissibility findings and by analogy with M.A. and Z.R. v Cyprus (No39090/20, 8 October 2024), found a violation of Article 13 read in conjunction with Article 3 of the Convention.

Lastly, regarding the complaint that the Croatian authorities preventing the applicant from contacting his lawyer violated Article 34 of the Convention, the court considered that this issue had already been addressed and found it unnecessary to give a separate ruling on that point.