: vom 19.03.2018 ()
Mangelhafte Haftbedingungen für minderjährige Schutzsuchende in Bulgarien im Jahr 2015:

1. Die Beschwerde ist zulässig, obwohl die Betroffenen den innerstaatlichen Rechtsweg nicht i.S.v. Art. 35 Abs. 1 EMRK durch Erhebung einer Schadensersatzklage erschöpft hatten. Eine solche Klage von ausländischen Betroffenen hätte nicht zum Erfolg geführt.

2. Die Dauer der Inhaftierung im vorliegenden Fall war viel kürzer als in anderen von Gerichtshof entschiedenen Fällen zur Inhaftierung von Minderjährigen. Die Haftbedingungen aber waren erheblich schlechter (unter Bezug auf Rechtssachen Khlaifia gg. Italien (siehe EGMR-Rechtsprechungsübersicht in AM 1-2/2017, S. 33), A.M. u.a. gg. Frankreich (AM 10/2016, S. 347) und A.A. und A.F. gg. Frankreich (AM 1-2/2015, S. 18).

3. Angesichts der extremen Verwundbarkeit von Minderjährigen und den erheblichen körperlichen und psychischen Auswirkungen solcher Haftbedingungen auf sie, waren die drei Söhne der Betroffenen einer unmenschlichen und erniedrigenden Behandlung i.S.d. Art. 3 EMRK unterworfen.

4. Trotz der stark erhöhten Zahl von Personen, die 2015 nach Bulgarien einreisten, lag kein Notstand vor. Daher wäre es möglich gewesen zumindest minimal angemessene Bedingungen für Minderjährige in Kurzhafteinrichtungen an der Grenze sicherzustellen.

(Leitsätze der Redaktion; siehe EGMR-Rechtsprechungsübersicht in AM 3/2018)

Bulgarien, minderjährig, Haftbedingungen, Rechtswegerschöpfung, Schadensersatz, Haftdauer, unmenschliche oder erniedrigende Behandlung, Grenze, Notstand,

EMRK Art. 3,



B. Admissibility


1. Exhaustion of domestic remedies [...]


(b) The Court’s assessment


48. It is not in doubt that the applicants could have brought a claim for damages under section 1(1) of the 1988 Act (see paragraph 34 above) in relation to the conditions in which the three minors – the third, fourth and fifth applicants – 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 Article 35 § 1 of the Convention to exhaust domestic remedies (see Choban v. Bulgaria (dec.), no. 48737/99, 23 June 2005; Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 101, ECHR 2010; and Djalti v. Bulgaria, no. 31206/05, § 75, 12 March 2013).


49. Nor is it open to question that, after the end of the applicants’ detention – which came more than five months before they lodged their application (see paragraphs 1 and 30 above) – the damages which they could have obtained as a result of such a claim would have amounted to adequate redress for their grievance (see A.F. v. Greece, no. 53709/11, §§ 53-54, 13 June 2013; Housein v. Greece, no. 71825/11, §§ 55-56, 24 October 2013; de los Santos and de la Cruz v. Greece, nos. 2134/12 and 2161/12, §§ 32-33, 26 June 2014; and Mohamad v. Greece, no. 70586/11, § 50, 11 December 2014).


50. The only point at issue is whether such a claim would have been reasonably likely to succeed at the time when the applicants lodged their application – February 2016 (see paragraph 1 above). [...]


56. It appears that, since the Court’s judgment in the case of Djalti (cited above) in 2013, no aliens have brought such claims. There is thus no direct evidence on the point – a state of affairs for which the Government cannot be blamed (see Mahamed Jama v. Malta, no. 10290/13, § 63, 26 November 2015; Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, § 48, 12 January 2016; and Abdi Mahamud v. Malta, no. 56796/13, § 52, 3 May 2016). There are, however, three reasons which, in this case, compel the conclusion that in February 2016 such a claim would not have been reasonably likely to succeed. [...]


60. The Government’s objection cannot therefore be allowed. [...]


C. Merits


(b) The Court’s assessment


72. According to its settled case-law, the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it (see Ireland v. the United Kingdom, 18 January 1978, § 210, Series A no. 25, and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 208, ECHR 2013). It is not bound by procedural barriers to the admissibility of evidence, and adopts the conclusions supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII, and, in relation specifically to the detention of minors migrants, Rahimi, cited above, § 64). These points reflect the well-established principle of international law that international courts are not bound by domestic evidentiary rules (see, in relation specifically to the Court, Al Nashiri v. Poland, no. 28761/11, § 23, 24 July 2014, and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 21, 24 July 2014).


73. Indeed, the Court has already relied on video evidence, not only in other contexts (see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 10, 91 and 176, ECHR 2000-VIII; Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 9, 139 and 185, ECHR 2011 (extracts); and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 11, 56, 61, 70 and 133, ECHR 2015), but also specifically with a view to establishing the conditions of detention of minor migrants (see Mahmundi and Others v. Greece, no. 14902/10, §§ 60 and 64, 31 July 2012). [...]


1. The video evidence submitted by the applicants [...]


75. The Court will therefore take into account the video submitted by the applicants in establishing the conditions of their detention.


2. Examination of the merits of the complaint [...]


(b) The Court’s assessment [...]


(ii) Application in this case


84. In this case, the period under consideration was, according to the Government’s calculations, about thirty-two hours. According to the applicants’ calculations, it was about forty-one hours (see paragraphs 11 and 29 above). Whichever of the two versions is taken as correct, it is clear that this amount of time was considerably shorter than the periods at issue in the cases mentioned in the previous paragraphs. However, the conditions in the border police’s detention facility in Vidin, as described by the applicants (without being contradicted by the Government), and as revealed by the video submitted by them, were considerably worse than those in all those cases. The cell in which the applicants were kept, though relatively well ventilated and lit, was extremely run-down, with 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 (see paragraph 15 above). It can hardly be said that those were suitable conditions in which to keep a sixteen-year old, an eleven-year old, and especially a one-and-a-half-year old, even for such a short period of time.


85. To this should be added the limited possibilities for accessing the toilet, which – as asserted by the applicants and as revealed by the video which they submitted (see paragraphs 15, 20, 24 and 27 above) – forced them to urinate onto the floor of the cell in which they were kept. Since the Government did not dispute that assertion or submit any evidence to disprove it, it must be regarded as proven.


86. The Court has many times held, in relation to prisons and pre-trial detention facilities, that subjecting a detainee to the humiliation of having to relieve himself or herself in a bucket in the presence of other inmates can have no justification, except in specific situations where allowing visits to the sanitary facilities would pose a concrete and serious safety risk (see the cases cited in Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 211, ECHR 2014 (extracts)). That must be seen as equally, if not more, applicable to detained minor migrants.


87. The final element to be taken into account is the authorities’ alleged failure to provide the applicants with food and drink for more than twenty-four hours after taking them into custody (see paragraphs 20, 25 and 26 above, and see, also as regards the adequate provision of food to people in detention, Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006; Stepuleac v. Moldova, no. 8207/06, § 55, 6 November 2007; and Korneykova and Korneykov v. Ukraine, no. 56660/12, § 141, 24 March 2016). The applicants’ allegations in that respect must likewise be seen as proven, given that the Government 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 provision of food and the manner in which it had in fact been provided (see paragraph 26 above).


88. Nor did the Government dispute the allegation that the second applicant had only been given access to the baby bottle and the milk of the toddler (the fifth applicant) about nineteen hours after they had been taken into custody (see paragraph 23 above). The small shoulder bag which can be seen in the video submitted by the applicants (see paragraph 15 above) does not appear to contain such items. In any event, a facility in which a one-and-a-half-year-old child is kept in custody, even for a brief period of time, must be suitably equipped for that purpose, which does not appear to have been the case with the border police’s detention facility in Vidin.


89. The combination of the above-mentioned factors must have affected considerably the third, fourth and fifth applicants, both physically and psychologically, and must have had particularly nefarious effects on the fifth applicant in view of his very young age. Those effects were hardly offset by the few hours that he spent in the hospital in Vidin in the afternoon and evening of 18 August 2015 (see paragraph 25 above).


90. By keeping those three applicants in such conditions, even for a brief period of time, the Bulgarian authorities subjected them to inhuman and degrading treatment.


91. It is true that in recent years the High Contracting States that sit on the European Union’s external borders have had difficulties in coping with the massive influx of migrants (see M.S.S. v. Belgium and Greece, cited above, § 223). But a perusal of the relevant statistics shows that although the numbers are not negligible, in recent years Bulgaria has by no means been the worst affected country (see paragraphs 8 and 39-41 above). Indeed, the number of third-country nationals found illegally present on its territory in the course of 2015 was about twenty times lower than in Greece and about forty-four times lower than in Hungary (ibid.). It cannot therefore be said that at the relevant time Bulgaria was facing an emergency of such proportions that it was practically impossible for its authorities to ensure minimally decent conditions in the short-term holding facilities in which they decided to place minor migrants immediately after their interception and arrest (contrast, mutatis mutandis, Khlaifia and Others, cited above, §§ 178-83).


92. In any event, in view of the absolute character of Article 3 of the Convention, an increasing influx of migrants cannot absolve a High Contracting State of its obligations under that provision, which requires that people deprived of their liberty be guaranteed conditions compatible with respect for their human dignity. A situation of extreme difficulty confronting the authorities is, however, one of the factors in the assessment whether or not there has been a breach of that Article in relation to the conditions in which such people are kept in custody (ibid., §§ 184-85).


93. In view of the above considerations, the Court concludes that there has been a breach of Article 3 of the Convention with respect to the third, fourth and fifth applicants. [...]

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