A constitutional complaint filed by the parents and eight siblings of Afghan migrant girl Madine Hosseini, who was killed in 2017 after she fell under a train near the Croatian-Serbian border, regarding their application for protection in Croatia, has been granted, Vecernji List daily reported on Wednesday.

In its ruling, Croatia’s Constitutional Court established that the Ministry of the Interior and lower administrative courts had failed to determine “with sufficient certainty” that Serbia was a safe third country, and that asylum seekers sent back to Serbia would not be at risk of being returned to their country of origin.

A complaint filed by the second wife of Madine’s father and children has also been granted, so decisions of the High Administrative Court were quashed, for a total of four Afghan adults and ten children ranging in age from one to 15. The case was returned to the Administrative Court in the city of Osijek.

After Madine’s death in 2017 the family was returned to Serbia, but in 2018 they re-entered Croatia again to seek international protection. Madine’s father said that the Taliban had threatened him with death in Afghanistan because he had worked as a police officer and a driver for the US military there. In fear for his life, and after getting injured in a Taliban attack, he decided to flee the country with his family.

After they had illegally crossed into Croatia from Serbia, they were caught by Croatian border police, who rejected their asylum request and applyied the so-called “safe third country” doctrine to return them back to Serbia. The explanation was that Serbia’s Constitution guarantees fundamental human rights.

Croatian courts had also confirmed that Serbia’s legal framework guaranteed an efficient and fair procedure for granting international protection. The fact that they had not been exposed to inhumane or degrading treatment in the year and a half that they had spent in Serbia was also taken into account by Croatian courts.

However, Croatian lawyer representing the family argued that the evaluation of Serbia as a safe third country had not taken into account the fact that over the past 10 years refugee status and protection had been legally granted to only 47 adults and 62 children – a negligible figure compared to the number of refugees passing through the country.

The constitutional judges also ruled that it was not enough to examine the legal framework for asylum seekers but also the real situation on the ground, Vecernji List said.