S.F. and others v. Bulgaria (application no. 8138/16) [Article 3 ECHR], 7 December 2017

Thursday, December 7, 2017

On 7 December 2017, the European Court of Human Rights (ECtHR) ruled in case S.F. and others v. Bulgaria (application no. 8138/16), which concerned an Iraqi family who had been detained at the border police’s detention facility in Vidin, Bulgaria. In August 2015, the Iraqi couple and their three children (aged sixteen, eleven and one and a half years old) were intercepted by the Bulgarian police when trying to cross the Bulgarian-Serbian border. The applicants, who were later granted international protection in Switzerland, complained before the ECtHR that the detention conditions in Bulgaria had subjected the three children to inhuman and degrading treatment contrary to Article 3 ECHR.

First, the ECtHR considered the Bulgarian government’s claim that the applicants had not exhausted domestic remedies in Bulgaria. The Court recognised that the introduction, in early 2017, of preventive and compensatory remedies specifically designed to provide redress in respect of inhuman or degrading conditions in correctional and pre-trial detention facilities could be considered as an effective remedy (e.g. Atanasov and Apostolov v. Bulgaria). However, at the time of the applicants’ stay in Bulgaria (mid-2015 to early 2016), a complaint regarding detention conditions such as that experienced by the applicants would not have been reasonably likely to succeed due to, inter alia, excessive burden of proof being put by administrative courts on the party making an allegation. Thus, the ECtHR rejected the claim that the applicants had an effective domestic remedy at their disposal.

Secondly, the ECtHR reiterated its settled case-law regarding the treatment of people held in immigration detention and the particular vulnerability of children. It acknowledged that the detention period under consideration (about 32 hours according to the Bulgarian government or about 41 hours according to the applicants) was considerably shorter than the periods at issue in the ECtHR’s previous jurisprudence (e.g. Popov v. France). However, the conditions faced by the applicants at the detention facility in Vidin were not suitable for children, even for such a short period of time. The detention cell was run-down, paint was coming off the ceiling, the floor was covered with dirty and damp cardboard sheets, and those detained had no access to the toilets and were kept without food for twenty-four hours. Therefore, the ECtHR found a violation of Article 3 ECHR.

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