Communicated on 20 September 2016

FIFTH SECTION

Application no. 8138/16 S.D. and Others against Bulgaria lodged on 8 February 2016

STATEMENT OF FACTS

1 . The five applicants are Iraqi nationals. They now live in Switzerland, pending the processing of their asylum claims by the Swiss authorities. The first and second applicants, Mr S.D. and Mrs W.H., born respectively in 1975 and 1978, are spouses. The other three applicants, Mr Y.D., Mr S.D. and Mr A.D., born respectively in 1999, 2004 and 2014, are their sons.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3 . In the late afternoon of 17 August 2015 the applicants, who had fled from Iraq and had illegally entered Bulgaria, were trying covertly to cross the Bulgarian-Serbian border near the village of Rabrovo. They were being driven in a vehicle together with eighteen other people, eight of whom were children.

4 . Between 4 and 5 p.m., when the vehicle was about twenty metres from the border, two officers from the Bulgarian Border Police intercepted it. The driver fled. One of the officers gave chase, while the other ordered all passengers to step off the vehicle. The first officer could not catch up with the driver and came back. He was apparently annoyed about this and hit one passenger. The applicants say that they were afraid that he might hit them as well.

5 . Half an hour later, two more officers came to the scene, and then a bus, with a driver and a photographer. The officers were allegedly insulting the arrestees, calling them “mice” and making insulting gestures. They ordered the applicants and the other passengers to get into the bus and drove them to a detention facility. The drive took about an hour. The officers asked the applicants their names, and the applicants gave them their true first names but a false family name, allegedly out of fear.

6 . Upon arrival at the facility, the officers searched the applicants and took away everything they had on them: bags, mobile telephones, money, food, even the fifth applicant ’ s nappies, baby bottle and milk. The men and the women were searched in separate rooms, by male and female officers, respectively. During the search, the applicants had to undress.

7. The officers then divided the arrestees in two groups. The applicants and another family were put in one cell, and the others in an adjoining one. Both cells were on the facility ’ s second storey.

8 . The cell was hot and its window could not open. A video shot by the applicants with a mobile telephone that they had managed to conceal shows that the cell was about four by four metres, with a large double window secured on the inside with a mesh grille and a padlocked meal grille serving as a door. The cell appears run-down, with dilapidated walls, paint coming off the ceiling in flakes, and floor partly covered with damp cardboard sheets. Furniture consisted of two bunk beds and a single bed, with four or five bare soiled mattresses. Two of the mattresses were on the floor, one on the single bed, and one on the bottom bunk of one of the bunk beds. A crumpled up bedsheet lay on one of the mattresses on the floor. Personal effects, such as trainers as well as some rubbish, were strewn about. Other random objects – food, rubbish and a blanket – were piled up in a corner.

9 . After they were put in the cell, the applicants were allegedly not given anything to drink or allowed to go to the toilet. Roughly four hours later, at about 10 p.m., officers came and took the first applicant to another building to take his picture and digitally fingerprint him. As he at first refused to follow them, they slapped him on the head. The same thing happened when the officers took the third applicant for fingerprinting. After that, the officers took out the second applicant for fingerprinting. Since the first applicant was still not back in the cell, for a while the children (the fourth and fifth applicant) remained there alone. After the fingerprinting, the officers left the applicants in the cell for the night. Since there was no toilet or a bucket in the cell, the applicants had to urinate on the floor.

10 . At about 11 a.m. or 12 noon the next day, 18 August 2016, an officer came and asked whether any of the applicants spoke English. The second applicant, who did, was taken to another building, where she was interviewed about the driver of the vehicle who had attempted to take the applicants across the border. In response to her entreaties, the officers fetched the second applicant ’ s bag and let her prepare a baby bottle for her toddler, the fifth applicant. Then, the officers took the applicants one by one out of the cell to go to the toilet.

11 . Later that day, a ten-month-old child in the adjoining cell touched an electrical wire and suffered an electrical shock. This caused panic, and the guards let all detainees out of their cells and onto the street. An ambulance was called for the child. When hearing that the applicants had not had anything to eat or drink since their arrest, the nurse who came with the ambulance quarrelled with the guards and took the second applicant and her youngest child, the fifth applicant, to a hospital. There, the child was examined, but the applicants were still not given anything to eat or drink. Two or three hours later, the second and fifth applicants came back to the facility. The guards then told the applicants that they would give them food if they paid, and took money from their bags and gave them two loaves of bread, a yoghurt, four bottles of Coca-Cola, one kilogram of tomatoes, one kilogram of cucumbers, one kilogram of bananas and a small piece of pat é . The guards also went to a pharmacy and bought medicines for the applicants. Then, at about 10 or 11 p.m., the applicants were put back in the cell. They were allowed to go to the toilet before that, but could not do so during the night.

12 . At about 12 noon or 1 p.m. the following day, 19 August 2015, the applicants were taken out for an interview and asked to sign documents in Bulgarian whose contents they say they did not understand. They were allegedly not given any explanations, but were given copies of the documents. It appears that these were orders for the first and second applicants ’ removal from Bulgaria and for their detention pending removal, all issued the previous day, which do however mention that an interpreter was present. It is unclear whether separate orders were issued with respect to the third, fourth and fifth applicants, who were mentioned as accompanied minors in the orders for the first and second applicants ’ detention (see paragraphs 18 and 20 below).

13 . At about 2 or 3 p.m., the applicants were given back their belongings and driven to a detention facility in Sofia, a big building holding hundreds or people. It appears that this was Busmantsi Detention Centre for aliens awaiting removal. There, the applicants and four other families were placed in a wing consisting or four cells and a common toilet. There were many other detainees in the wing: twenty-four people in one cell, seven in another, and three in a third one. The applicants were given food three times a day, which they could eat in the canteen. They spent eleven days there. Upon their release, they immediately left Bulgaria and managed to make their way to Switzerland, where they applied for asylum.

B. Relevant international reports

14 . In the report of its December 2008 visit to Bulgaria ( CPT/Inf (2010) 29 ), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) said this about the conditions in Busmantsi Detention Centre (footnotes omitted):

“31. Material conditions at the Busmantsi Home were an improvement on those observed by the CPT in the past at the facility in Drouzhba, previously used for the temporary accommodation of foreign nationals. Accommodation was provided in a 4 ‑ storey building divided into a male and a female section (the latter section included a room for families). The dormitories had large windows, providing good access to natural light and ventilation, and were adequately heated. The equipment consisted of bunk beds (usually 10 to 15 in each room), with full bedding, and personal lockers. To obtain a minimal degree of privacy, the foreign nationals had put up makeshift partitions between the beds, using blankets and sheets.

Most of the beds were unused at the time of the visit and although no overcrowding was observed (e.g. 15 persons in a room measuring some 80 m² in the male section; 8 persons in a room of 56 m² in the female section), the dormitories would become overcrowded if the establishment were to be used to its full capacity. Further, although the Home was only opened in 2006, the delegation observed a deterioration of the facilities (e.g. broken beds, dilapidated shower and toilet rooms). The delegation was informed that there was a lack of funding for running repairs and that the Home ’ s management had turned to NGOs for assistance in replacing broken furniture.

The establishment had modern technology for security and safety, including CCTV. That said , the call bells in some of the dormitories were out of order.

32. There was no integral sanitation in the dormitories but detainees had unlimited access during the day to communal toilet and washing areas (including showers, with constant supply of hot water). Many detained men complained that access to the toilet was problematic when the dormitories were locked at night, since it was not easy to summon staff, and alleged that they sometimes had to resort to urinating in a bottle. In contrast, no complaints about access to the toilet at night were heard from the women.

Detainees washed their own clothes in a laundry room equipped with washing machines, but the facilities to dry the laundry were inadequate. The delegation was informed that detained persons were provided with materials to clean their own rooms.

33. The Home ’ s management indicated that every new arrival was provided with a toiletry kit and clothing (from donations). However, the lack of personal hygiene items was a recurring complaint of detainees. Moreover, some detainees complained of not having appropriate clothing and footwear for the climate. The management reassured the delegation that every person who had asked for warm clothing had been given some, ‘ but not many ask ’ . This can be seen as an indication of the lack of good communication at the Home.

34. As regards food , a catering company provided three meals a day, at a daily per capita cost of 5.15 BGL. Meals were taken in a spacious dining room and the delegation observed that the menu was varied (including fresh vegetables and fruit). ...”

15 . In the report of its October 2010 visit to Bulgaria ( CPT/Inf (2012) 9 ), the CPT said this about the conditions in Busmantsi Detention Centre (footnotes omitted):

“40. Material conditions at the Busmantsi Home were described in detail in the report on the visit in 2008, and a number of recommendations for improvements were made by the CPT. However, no signs of improvement were observed by the delegation at the time of the visit in 2010.

The Home was operating well below its official capacity and no overcrowding was observed; however, the dormitories continued to be crammed with bunk beds, most of them unused and broken, and would become overcrowded if the establishment were to be used to its full capacity. Further, some foreign nationals complained about the absence of solid doors to the dormitories, which entailed a lack of privacy, especially in the case of women and married couples who were accommodated together in the women ’ s section.

There was clearly a need of funding for running repairs as well as for providing detained foreign nationals who are destitute with clothing and shoes appropriate for the season and with an adequate range of sanitary items (including for women ’ s monthly needs).

41. There was no integral sanitation in the dormitories and some detained persons complained that access to the toilet was problematic when the dormitories were locked at night, since it was not easy to summon staff.

On a positive note, access to the showers was unlimited and there was no shortage of hot water. However, the communal toilet and washing areas were rather dilapidated and dirty. Further, there was no laundry and no facilities for drying clothes and bed linen.

42. Food (the budget for which was said to be 4.93 BGL per person per day) was served three times a day in a spacious dining room, and foreign nationals were allowed to make additional purchases. However, a number of them complained about insufficient quantity and inadequate quality of the food provided at the Home.”

16 . In a 2014 report (“Containment Plan: Bulgaria ’ s Pushbacks and Detention of Syrian and Other Asylum Seekers and Migrants”), Human Rights Watch described Busmantsi Detention Centre, which they had visited in December 2013, as follows (at pp. 3 and 39, footnotes omitted):

“The Bulgarian border authorities were transferring some irregular border crossers ... to one of two detention cent[ re]s operated by the Ministry of Interior: Lyubimets, located about 30 kilomet [re]s northwest of the Turkish border, or Busmantsi, on the outskirts of Bulgaria ’ s capital, Sofia. Both detention cent[ re]s are locked and guarded prison-like buildings surrounded by high walls and barbed wire.

...

Located on the outskirts of Sofia, Busmantsi [Detention Centre] is used primarily to hold migrants pending their deportation. With a capacity for 400 detainees, the facility held 486 detainees on the first day Human Rights Watch visited. The commander said that it had been over capacity for the past six months. The Ministry of Interior said that 380 minors were held there in 2013. Human Rights Watch was able to tour the living quarters and witnessed the overcrowding of about 30 men in a room. There is little space to sit in the rooms, but there is a small separate room with a television set and a recreation yard that detainees were using during the visit. The bedding looked worn and dirty. One of the dormitory rooms had no glass in one of the windows, and the men there were using a piece of a bedsheet to shield themselves from the cold wind.”

17 . In the report on his February 2015 visit to Bulgaria ( CommDH ( 2015)12), the Council of Europe ’ s Commissioner for Human Rights said this about Busmantsi Detention Centre (at pp. 27-28):

“While the 2012 report of the Committee for the Prevention of Torture (CPT) included specific recommendations to the Bulgarian Government to improve the conditions in the Busmantsi detention centre, NGOs have reported no progress in their implementation so far. Detainees in both Busmantsi and Lyubimets reportedly complained in 2014 of abusive, sometimes violent, treatment by guards, overcrowding and noise, tension among various nationality groups, the mixing of unaccompanied children with adults, dirty and insufficient toilets, inadequate ventilation, and the poor quality of the food. They also indicated that they had limited means to communicate with the outside world, as well as a lack of communication with guards and other authorities. This resulted in a lack of awareness about procedures relating to release or asylum procedures.”

C. Relevant domestic law

1. Detention of minor aliens

18 . By section 44(9) of the Aliens Act 1998, as in force since 2013, accompanied minor aliens may exceptionally be detained pending removal, but the detention centres in which they are placed must have special premises adapted to their age and needs. Unaccompanied minor aliens may not be detained in detention centres for aliens.

19 . By section 46a( 1) of that Act, all orders for the detention of aliens pending removal are subject to judicial review.

20 . In four recent decisions, the Supreme Administrative Court held that a minor alien detained de facto as a result of the detention of the adult alien who accompanies him could not seek judicial review of the order for the adult ’ s detention because he was not its addressee. Instead, he could seek an injunction for release (see опр. № 7499 от 22.06.2016 г. по адм. д. № 6803/2016 г., ВАС, VII о.; опр. № 8416 от 07. 07 .2016 г. по адм. д. № 7527/2016 г., ВАС, VII о.; опр. № 9090 от 21.07.2016 г. по адм. д. № 8035/2016 г., ВАС, VII о.; and опр. № 9283 от 28.07.2016 г. по адм. д. № 8634/2016 г., ВАС, VII о. ). In a 2011 case, the Sofia City Administrative Court issued such an injunction, finding that in the absence of an express order for the detention of a minor alien, his detention was unlawful (see разп . № 2263 от 25.05.2011 г. по адм. д. № 4420/2011 г., АС-София-град ). But the injunction can only be granted if the alien is still in custody when the court decides (see опр. № 36 от 14.07.2016 г. по адм. д. № 307/2016 г., АС-Хасково, and опр. № 59 от 19.07.2016 г. по адм. д. № 333/2016 г., АС-Хасково ). Those two cases, and several others decided by the Haskovo Administrative Court at about the same time, were apparently processed in three to five weeks.

2. Compensation for poor conditions of detention

21 . By section 1(1) of the State and Municipalities Liability for Damage Act 1988, the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, actions or omissions by State or municipal authorities or civil servants, committed in the course of or in connection with administrative action.

22 . Convicts and pre-trial detainees routinely claim damages under this provision for the conditions of their detention (see Neshkov and Others v. Bulgaria , nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13 , § § 130-31 , 27 January 2015 ).

23 . By contrast, there is only one case relating to conditions in detention facilities for aliens. It was brought in 2010 by a Turkish national kept in Busmantsi Detention Centre for thirteen days in October-November 2009. The Sofia City Administrative Court found the claim admissible but unproven (see реш. № 2847 от 10.06.2011 г. по адм. д. № 6036/2010 г., АС-София-град ). On appeal, the Supreme Administrative Court affirmed on the same basis (see реш. № 14967 от 16.11.2011 г. по адм. д. № 9889/2011 г., ВАС, III о. ).

COMPLAINT

24 . The applicants complain under Article 3 of the Convention that the conditions of their detention constituted inhuman and degrading treatment for the three children.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted domestic remedies in respect of their complaint that the conditions in which they were detained subjected the three children to inhuman and degrading treatment? In particular, in the light of Court ’ s findings in Neshkov and Others v. Bulgaria (nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13 , §§ 130-36, 194-206 and 273, 27 January 2015), can a claim for damages under section 1(1) of the State and Municipalities Liability for Damage Act 1988 still be regarded as such a remedy, as held earlier in Djalti v. Bulgaria (no. 31206/05 , § § 73 ‑ 76, 12 March 2013) ?

2. Did the conditions of the applicants ’ detention subject the third, fourth and fifth applicants to inhuman or degrading treatment, in breach of Article 3 of the Convention (see Popov v. France , nos. 39472/07 and 39474/07 , § § 90-103, 19 January 2012, and A.M. and Others v. France , no. 24587/12 , § § 47-53, 12 July 2016 )?