ECtHR - S.F. and Others v. Bulgaria, Application No. 8138/16, 7 December 2017

Facts:

The applicants in this case form part of the same family, S.F1 and W.O are spouses and the other three applicants Y.F, S.F2 and A.F are their sons.

On 14 August 2015, the applicants, who fled from Iraq, covertly crossed the Turkish-Bulgarian border. However, their aim was to get to Western Europe. At that time, W.O was three months pregnant.

On 17 August 2015, while the applicants were trying to cross the Bulgarian-Serbian border, two officers of the Bulgarian border police intercepted their vehicle.

On the following days, the applicants were detained together in a cell located in Vidin border police’s detention facility. According to the applicants, the cell was hot, dirty, the furniture was in a bad condition, they were not given anything to eat or drink or allowed to go to the toilet, therefore they had to urinate on the floor. In order to record the situation of the cell, the applicants recorded a video with a cell phone they managed to conceal.

On 18 August 2015, border police interviewed S.F1 and W.O. The interview was conducted in English and translated into Bulgarian with the help of an interpreter.

The next day, 19 August 2015, the applicants were served with orders for S.F1 and W.O removal from Bulgaria and for their detention pending removal, all issued the previous day. However it did not appear that separate orders were issued with respect to Y.F, S.F2 and A.F, who were mentioned as accompanied minors.

On the same day, the applicants were given back their belongings and were driven to an immigration detention facility in Sofia.

On 24 August 2015, the applicants sought international protection in Bulgaria.

On 31 August 2015 their applications were registered by the competent authority and on the same day they were released from the immigration detention facility in Sofia and settled in an open facility for the accommodation of asylum seekers.

However, on 23 September 2015 the applicants’ asylum request was discontinued because they fled from the facility.

After the applicants fled from the facility, they made their way to Switzerland, where they sought international protection on 8 September 2015.

Nevertheless, on 8 January 2016, the Swiss authorities decided not to examine their applications and to transfer them back to Bulgaria, according to the provisions of the Regulation (EU) No /604/2013.

Considering the Swiss decision, on 8 February 2016, the applicants lodged their application to the ECtHR against Bulgaria alleging that the conditions in which they had been kept in the border police’s detention facility in Vidin had been inhuman and degrading.

S.F1 and W.O alleged on behalf of their children, whereas Y.F, S.F2 and A.F alleged that the conditions in which they had been kept in immigration detention had been inhuman and degrading.

In the meantime, due to legal challenges made by the applicants, on 7 July 2016 the Swiss authorities decided to proceed with the examination of the applications.

On 20 September 2016, the ECtHR gave Bulgaria notice of the complaints concerning the detention conditions of Y.F, S.F2 and A.F (the children).

On July 2017, Switzerland granted asylum to the applicants.

Decision & reasoning:

Exhaustion of domestic remedies

In 2013 the Court noted that, although the Bulgarian courts’ case-law regarding conditions of detention under the Bulgarian 1988 Act had initially developed in relation to correctional and pre-trial detention facilities, it had also been applied in relation to immigration detention facilities

Therefore, applicants could have brought a claim for damages under the Bulgarian regulation in relation to the conditions in which the three minors (Y.F, S.F2 and A.F)  had been kept in the border police’s detention facility in Vidin. The practical difficulties owing to their being foreigners who do not speak Bulgarian does not exempt them from the requirement of exhausting domestic remedies. In spite of this, the applicants did not request such remedies in the Bulgarian courts, and by not bringing such a claim, the applicants apparently had failed to exhaust domestic remedies.

However, in 2015, reports informed that in previous and similar cases, the granting of remedies by Bulgarian administrative courts did not offer a reasonable prospect of success in cases where remedies were demanded due to inhuman or degrading conditions in detention centres (such a situation was not amended till 2017). Consequently, considering the applicants were released on February 2016, it is safe to say that the claims of the applicants in February 2016 would not have been reasonably likely to succeed.

Hence, following the aforementioned, the ECtHR should not require the applicants to exhaust domestic remedies as there is evidence to show that such domestic remedies were not working properly at that time.

Alleged abuse of the right of individual application

Bulgaria argued that by failing to inform the ECtHR about the application for international protection made by the applicants in Bulgaria or to inform ECtHR of the unfolding of the proceedings pursuant to their applications for international protection in Switzerland, the applicants attempted to mislead the ECtHR and had abused their right to an individual application. However, the ECtHR stated that the only relevant complaint was under Article 3 of the ECHR in respect of the detention conditions of Y.F, S.F2 and A.F. and the information mentioned by Bulgaria was not related and therefore the omission was not considered as an abuse of the right to an individual application.

Video evidence submitted by the applicants

Bulgaria stated that the video submitted by the applicants could not serve as proper evidence as it was impossible to establish the precise date, location and time when it had been shot, and its quality is poor. Therefore, it was unclear if the video was shot in Bulgaria.

In response, the ECtHR argued that it is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it and it is not bound by procedural barriers to the admissibility of evidence. The ECtHR’s argument is supported by the principle of international law that states that international courts are not bound by domestic evidentiary rules.

Moreover, the ECtHR had relied on video evidence in other cases in order to determine the conditions of detention of minor migrants. It has even asked other governments to provide video evidence in cases concerning conditions of detention, and has drawn inferences from their failure to do so or from the applicant’s failure to rebut photographic evidence provided by the government.

Regarding the reliability of the evidence, it should be noted that the two video files submitted by the applicants bore time stamps which dated from not long after the time of their detention in Bulgaria. Additionally, Bulgaria has confirmed the people featured in the video are the applicants and there are no signs that it has been manipulated.

In addition, the ECtHR stated that it is true that there are no elements in the video (such as text written in Cyrillic or words spoken in Bulgarian) which could enable the ECtHR to ascertain that it was recorded inside the border police’s detention facility in Vidin, but at the same time there are no elements which suggest otherwise.

Considering this, Bulgaria was entitled to submit their own footage of the place where the applicants were detained according to official records, however they had not supported their assertions with such evidence.

Therefore, according to the aforementioned the video submitted by the applicants will be taken into account.

Conditions in the detention centre

Bulgaria informed that neither the conditions in the border police’s detention facility in Vidin nor the manner in which the applicants had been provided there with food and drink had been in breach of Article 3 ECHR, especially in view of the presence of both parents and limited amount of time which they had spent there. Moreover, there was no requirement under Bulgarian law to detain minor migrants in specially adapted facilities.

On the other hand, the applicants provided monitoring reports about the conditions in which migrants were being detained in Bulgaria. They pointed out that owing to such problem some states had refused to send asylum-seekers back to Bulgaria.

With regards to the ECtHR’s assessment, the Court noted that immigration detention of minors, whether accompanied or not, raises particular issues in that regard, since they are extremely vulnerable and have specific needs.

Although the amount of time spent in the detention centre was short (between 32 and 41 hours), the conditions in the border police’s detention facility in Vidin and especially in the cell (paint peeling off the walls and ceiling, dirty and worn out bunk beds, mattresses and bed linen and litter and damp cardboard on the floor) may have caused stress and anxiety to the children as those were not suitable conditions in which to keep children, even for such a short period of time. To this should be added the limited possibilities for accessing the toilet which forced them to urinate onto the floor of the cell in which they were kept.

The ECtHR argues that the prohibition of access to the toilet can only be justified where there is a chance that it would pose a concrete and serious safety risk. However, as Bulgaria have not argued anything in order to justify such action it must be assumed that there was no safety justification.

Finally, regarding the failure to provide the applicants with food and drink for more than twenty-four hours after taking them into custody, such a situation must be considered as proven as Bulgaria only stated that they had been provided with quantities of food amounting to the prescribed daily rations, without commenting on the specific allegations about the serious delay in the provisions of food.

The combination of all of the mentioned factors must have considerably affected the applicants Y.F, S.F2 and A.F. both physically and psychologically. Therefore, by keeping them in such conditions, even for a brief period of time, the Bulgarian authorities subjected them to inhuman and degrading treatment. Therefore, there was a breach of Article 3 ECHR.

Outcome:

The ECtHR unanimously:

- Declares admissible the complaint concerning the conditions of Y.F, S.F2 and A.F’s detention.

- Hold that there has been a violation of Article 3 of the ECHR with respect to Y.F, S.F2 and A.F.

- Ordered Bulgaria to pay, within three months from the date on which the judgement becomes final, the following amounts:

• To Y.F., S.F2., and A.F., the amount of EUR 600 each in respect of non-pecuniary damage.
• EUR 1,000 in respect of costs and expenses.

Observations/comments:

Considering two of the applicants (father and son) have the same initials for the purpose of this summary we added a number to their initials, being S.F1 the father and S.F2 the son.

This case summary was written by Oscar Pajuelo, LLM student at Queen Mary University, London.