ECHR judgment of February 28, 2019 in the case of Khan v. France (application No. 12267/16).
In 2016, the applicant was assisted in preparing the application. Subsequently, the application was communicated to France.
In the case, the applicant’s application about the lack of support from state authorities and their failure to take any measures to provide him with a place to stay was successfully considered, and therefore the applicant lived for a long time in an environment that was clearly not suitable for him as a minor . The case has violated the requirements of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant, an unaccompanied minor foreign citizen (hereinafter - NNIG), at the age of 12 years lived for six months in the southern zone of the Calais wasteland. The French authorities did not take the applicant into their care, like most NNIG, and he lived in a camp.
The Calais Wastelands (Lande de Calais) - a place known for a long time as the Calais Jungle, is an area of about 20 hectares near the entrance to the Channel Tunnel from the French Republic and the Calais port area, where migrant camps are located and refugees (note. translator).
On February 19, 2016, one of the non-governmental organizations requested the juvenile judge to temporarily provide the applicant with accommodation. On the same day, the juvenile judge, noting that the applicant had no legal representatives in France, appointed him an ad hoc trustee. By a decision of February 22, 2016, a juvenile judge ordered the applicant to be provided with social support in the interest of protecting him as a minor and to provide him with a place to live and to create conditions for him to reunite with his family members living in the United Kingdom.
The applicant submitted that neither the Pas-de-Calais Department nor the prefectural services had taken any measures to provide him with a place to live. Accordingly, after the demolition of his tent during the operation to liquidate the southern zone on 2 March 2016, the applicant lived in a “temporary hut” located within the northern zone. Within a week after March 20, 2016, the applicant left the wasteland and secretly crossed into the United Kingdom.
QUESTIONS OF LAW
Regarding compliance with Article 3 of the Convention (substantive aspect). In the absence of support from state authorities and despite the assistance that non-governmental organizations working in the wasteland could give him, the applicant lived for six months in an environment that was clearly not suitable for him as a minor and not suitable for conditions for which, in particular, unsanitary conditions, feelings of insecurity and uncertainty were characteristic. The applicant’s situation, aggravated by the lack of support from state authorities, was aggravated after the liquidation of the southern wasteland zone, since the tent in which he lived was demolished and the general living conditions in the area worsened. Ultimately, it was precisely in connection with the danger of the situation in which the applicant found himself that the juvenile judge ordered on February 22, 2016 to provide the applicant with social support in the interests of his protection as a minor.
Accordingly, before the decision was made to provide the applicant with accommodation, the competent authorities of France did not even recognize the applicant as NNIG, although he lived in the area for several months and his young age should have attracted the attention of state representatives. The means used to identify NNIG were inadequate.
Furthermore, although the applicant had a positive attitude towards the decision to provide him with accommodation, he, being a 12-year-old child who did not speak French perfectly, was not obliged to independently take the measures necessary to receive social support. It is also impossible to blame non-governmental organizations that voluntarily assisted the applicant, as well as the lawyer who represented the applicant during the proceedings, which ended with the adoption of the decision of February 22, 2006, and the ad hoc trustee, who was appointed February 19, 2016, to that the applicant was not transferred to the premises that had been allocated to him by the French authorities, since such a duty was obviously assigned to the public authorities.
The task of public authorities was difficult, given, in particular, the number of people living in the wasteland during the period related to the circumstances of the present case, as well as the difficult nature of identifying NIIG among them, the choice and implementation of mechanisms for accepting NIIG adapted to their situation, when that they did not always apply for social support. However, the state authorities, which did not enforce the decision to temporarily provide the applicant with accommodation, did not make all the efforts that could be expected of them to fulfill their obligation to provide support and protection for the applicant, given that it was an illegal NNIG 12 -year-old age, that is, about a person belonging to the most vulnerable groups of society.
The social instability of the environment, which was absolutely unsuitable for minors, in which the applicant was for several months in the “slums” of the Kale wasteland, as well as the failure to comply with the decision of the juvenile judge to protect the applicant, together amounted to degrading treatment.
In the case there was a violation of the requirements of Article 3 of the Convention in its substantive aspect (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 15,000 in respect of non-pecuniary damage; the claim for pecuniary damage was rejected.