CASE OF S.F. AND OTHERS v. BULGARIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The five applicants are Iraqi nationals. They now live in Switzerland, where they were granted asylum in July 2017 (see paragraph 31 below). The first and second applicants, Mr S.F. and Mrs W.O., born respectively in 1975 and 1978, are spouses. The other three applicants, Mr Y.F., Mr S.F. and Mr A.F., born respectively in 1999, 2004 and 2014, are their sons. 6. On 14 August 2015 the applicants, who had fled from Iraq, covertly crossed the Turkish-Bulgarian border. They were travelling with four other families. From there, they took taxis which drove them to the outskirts of Sofia, where they slept under the open sky for two nights. On 17 August 2015, they hired other taxis to drive them to the Bulgarian-Serbian border, somewhere around the town of Bregovo. Shortly before the border, the applicants switched cars, getting into a Toyota sports utility vehicle, which was supposed to take them through a wooded area to the border itself. They intended to cross that border covertly as well, and from there continue towards Western Europe. 7. At that time, the second applicant was three months pregnant. 8. According to media reports, over the last few years the abovementioned route has been a popular one for migrants trying to cross Bulgaria covertly on their way to Western Europe. According to a report submitted by the Government, in August 2015 the Bulgarian border police intercepted 350 adult migrants and 132 minor migrants near Bregovo and took them into custody. 9. In the late afternoon of 17 August 2015 the applicants were driven in the Toyota towards the Bulgarian-Serbian border near the village of Rabrovo, which is about fifteen kilometres south of Bregovo, twenty-five kilometres west of the town of Vidin, and about two kilometres from the border. It was also transporting the four other families; together with the applicants, it carried a total of eighteen passengers, eight of whom were minors. 10. At about 5 p.m., when the Toyota was just a few metres away from the border, two officers of the Bulgarian border police intercepted it. The driver fled. One of the officers gave chase, while the other ordered all the passengers to step out of the vehicle. The first officer could not catch up with the driver and came back. According to the applicants, he was apparently annoyed about his inability to detain the driver and hit one of the passengers. The applicants submitted that they had been afraid that he might hit them as well. 11. Half an hour later, two more officers came to the scene; subsequently, a bus, with a driver and a photographer, also arrived. According to the applicants, the officers insulted the arrestees, called them “mice” (the applicants did not specify in what language), and made insulting gestures. They ordered the applicants and the other passengers to get into the bus and drove them to the Bregovo Border Police Department’s detention facility in Vidin. According to the applicants, the drive took about an hour. According to the Government, the drive could not have taken less than three hours. The preparation of the documents relating to the applicants’ arrest then took another hour, and the written declarations that they had been acquainted with their rights were stamped as having been signed at 9 p.m. The applicants could not have therefore been placed in their cell earlier than 10 p.m. 12. Upon their arrival at the border police’s detention facility in Vidin, the applicants were searched. According to them, all their effects – including travelling bags, mobile telephones, money, food, and even the fifth applicant’s nappies, baby bottle and milk – were taken away from them, except for a mobile telephone belonging to the third or the fourth applicant, which they managed to conceal. According to a search report submitted by the Government, when searching the second applicant the authorities seized from her four mobile telephones, SIM cards, a USB flash drive, two digital video disks and cash. The Government also pointed out that in a video submitted by the applicants (see paragraph 15 below), travel bags and personal effects were visible inside their cell. 13. After the search, the arrestees were split into two groups. The applicants and another family were put in one cell, and the others in an adjoining one. In the application form, the applicants stated that both cells were on the detention facility’s second floor. 14. According to the applicants, the cell was hot and its window could not be opened. 15. The applicants also submitted a video, which according to them had been shot with the mobile telephone that they had managed to conceal during the search (see paragraph 12 above). It shows that the cell was at ground level, about 4 by 4 metres, with a large double window (secured on the inside by a mesh grille), an open door, and a padlocked metal grille on the door. In the video the cell looks run-down, with dilapidated walls, paint coming off the ceiling in flakes, and a dirty floor partly covered with dirty (and in places damp) cardboard sheets. The furniture consists of two old and dilapidated bunk beds and a single bed, with four or five bare soiled mattresses. Two of the mattresses are on the floor, one is on the single bed, and one is on the bottom bunk of one of the bunk beds. A single crumpledup bed sheet lies on one of the mattresses on the floor. Personal effects, such as a small shoulder bag, training shoes and some litter, are strewn about. Other random objects – food remains, empty plastic bottles, rubbish and a torn blanket – are piled up in a corner. The third and fourth applicants can be seen sitting on one of the bunk beds, whereas the fifth applicant (the toddler) can at first be seen sitting on the floor beside the door and then being picked up and carried around by the first applicant. Apart from the five applicants, three other people can be seen in the cell: a middleaged woman lying on the single bed, a boy (perhaps two or three years old), and the man shooting the video. 16. The video was submitted by the applicants on a digital video disk containing two video files. One is in .mpg format and bears a time stamp according to which it was last modified at 5.36 p.m. on 17 September ‎2015; and the other is in .mp4 format and bears a time stamp according to which it was last modified at 3.27 p.m. on 15 December 2015. The footage in both files is identical, except that: (a) the faces of the applicants in the first one have been pixelated (whereas in the second they have not); (b) the running time of the first video is one minute and twenty-one seconds (whereas that of the second is one minute and thirty-two seconds, as it continues for another ten seconds); and (c) in the first file the footage is horizontal whereas in the second it is rotated to the right at a ninety-degree angle. The footage in the first file has a definition of 1,280 by 720 pixels and is at twenty-four frames per second, whereas that in the second file has a definition of 1,920 by 1,080 pixels and is at twenty-nine frames per second. 17. The applicants explained that the above-mentioned dates and times corresponded with when they had copied the video files in Switzerland, and that they had in fact recorded the original video on 18 August 2015, at about noon. Since they had taken the SIM cards out of the mobile telephone several times in the course of their journey and then re-inserted them, the telephone had not indicated the correct time and date, making it impossible to pinpoint the exact date and time when the video had been recorded. 18. In a letter to the Government Agent, an official from the Migration Directorate of the Ministry of Internal Affairs in Sofia, having compared the video footage with the photographs in the applicants’ migration files, stated that he could confirm that the applicants were indeed the people featured in the video. 19. According to the Government, the border police’s detention facility in Vidin was equipped in accordance with the relevant regulations. They did not provide further details in that respect. 20. According to the applicants, after being put in the cell, they were not given anything to eat or drink, or allowed to go to the toilet. Since there was no toilet or a bucket in the cell, they had to urinate onto the floor. The Government did not comment on that point. 21. About four hours later, at about 10 p.m., officers came and took the first applicant to another building in order to take his picture and to digitally fingerprint him. After that, the officers took out the second applicant for fingerprinting. After the fingerprinting procedure, the officers left the applicants in the cell for the night. 22. Between 10.30 a.m. and 11 a.m. and between 11 a.m. and 11.30 a.m. the next day, 18 August 2015, a border police investigator interviewed respectively the first and the second applicants. The interviews were conducted in English and translated into Bulgarian with the help of an interpreter. 23. According to the applicants, after the interview the second applicant asked the guards to give her back her bag, so that she could prepare a baby bottle for her toddler (the fifth applicant), and the guards did so. The Government did not comment on that point. 24. After that, the guards took the applicants one by one out of the cell to go to the toilet. 25. According to the applicants, later that day, a ten-month-old child in the adjoining cell touched an electrical wire and suffered an electric shock. That caused panic among the detainees, and the guards allowed all of them out of their cells. An ambulance was called. When hearing that the applicants had not had anything to eat or drink since their arrest, the nurse who came with the ambulance argued with the guards and took the second applicant and her youngest child, the fifth applicant, to a hospital in Vidin, where the second applicant was examined by a gynaecologist between 8.05 p.m. and 8.35 p.m., and the fifth applicant was examined by a paediatrician between 8.20 p.m. and 8.40 p.m. Two or three hours later they were taken back to the detention facility. 26. According to the applicants, at that point the guards told them that they would give them food if they paid for it; the guards then 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 paté. According to the Government, the applicants were provided with food and water, in accordance with the relevant regulations. In support of their assertion, the Government submitted a table setting out the prescribed daily rations for adult and minor detained migrants and a report, drawn up by the head of the Bregovo Border Police Department on 1 September 2015, which listed the names of all migrants – including the applicants – which had been detained in the Department’s detention facility in Vidin during the month of August 2015 and provided with food there. 27. Then, at about 10 p.m. or 11 p.m., the applicants were put back in the cell. According to them, they were allowed to go to the toilet before that, but had not been able to do so during the night. The Government did not comment on that point. 28. The next day, 19 August 2015, the applicants were served with orders for the first and second applicants’ removal from Bulgaria and for their detention pending removal, all issued the previous day. It does not appear that 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 paragraph 33 below). 29. According to the applicants, at about midday on 19 August 2015 they were given back their belongings and driven to an immigration detention facility in Sofia. According to the Government, that happened much earlier that day, at about 6 a.m. or 7 a.m., since the relevant records showed that the applicants had been placed in the detention facility in Sofia at 2.45 p.m., and the normal travel time between the two facilities was about six or seven hours. 30. On 24 August 2015 the applicants sought international protection in Bulgaria. Their applications were registered by the State Agency for Refugees on 31 August 2015, and they were released from the immigration detention facility in Sofia and settled in an open facility for the accommodation of asylum-seekers. On 23 September 2015 those proceedings were, however, discontinued because the applicants had vanished from the facility. 31. In the meantime, the applicants made their way to Switzerland, where they likewise sought international protection on 8 September 2015. On 8 January 2016 the Swiss authorities decided not to examine their applications but rather to transfer them back to Bulgaria under Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a thirdcountry national or a stateless person (“the Dublin III Regulation”), which also applies to Switzerland (see A.S. v. Switzerland, no. 39350/13, §§ 12-13, 30 June 2015). Following legal challenges by the applicants, on 7 July 2016 the Swiss authorities varied their own decision and proceeded with the examination of the applications. Just over a year later, on 27 July 2017, the applicants were granted asylum in Switzerland.