Case of A.S. et al. - 3043/2017

FINAL

UNHRC

Article 2 (3), 6 and 7 of the International Covenant on Civil and Political Rights. Article 1, 5 (2) (b) of the Optional Protocol.

2020

Inadmissible

The applicants in this case are Syrian nationals. They were on a vessel in the Mediterranean Sea carrying more than 400 people. The vessel shipwrecked 113 kilometers south of Lampedusa, which caused the death of over half of those on board as Italian and Maltese rescue services only arrived after the vessel had capsized. 

The Italian rescue center was contacted when the vessel started to sink. Several hours later, the rescue center replied to the request stating that the applicants were in the Maltese search and rescue zone, and provided them with a phone number for the Maltese rescue center. Several calls were subsequently made to the Maltese armed forces. After the Maltese authorities got involved, they assumed coordination of the case at 2.35 p.m. However, when the vessel capsized at 5.09 p.m. no Maltese vessels were present.

The applicants claimed a violation of Article 6 (1) of the Covenant, a violation of Article 6 (1) read in conjunction with Article 2(3) of the Covenant, and a violation of Article 7 in conjunction with Article 2 (3) of the Covenant. Responding to the applicant’s claims, Malta submits that the communication is inadmissible under Article 1 of the Optional Protocol as Malta did not have jurisdiction over the applicants at the time of the incident.

The Committee confirmed that the shipwreck occurred outside of Maltese territory and that the alleged violations did not take place on board a vessel flying the Maltese flag. However, the Committee then underlined that State parties are required to respect and ensure the Covenant rights to all persons who might be within their territory and to all persons subject to their power or effective control outside of its territory. The Committee also specifically recalled paragraph 63 of its general comment No. 36 (2018) on the right to life, in which it observed that a State party has an obligation to respect and ensure the rights under Article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.

The Committee then proceeded to decide if the applicants could have been under the effective control of Malta at the time of the incident, bringing them under its jurisdiction. In this regard, the Committee considered that the vessel was located in Malta's search and rescue area. Moreover, it was considered that Malta had officially assumed responsibility for the search and rescue operation. Taking those two factors into account, the Committee held that Malta had exercised effective control over the rescue operation, potentially resulting in a direct and foreseeable causal relationship between the acts and omissions of the state and the consequences for the people aboard the vessel. Therefore, the Committee held that Malta had exercised jurisdiction and it was not precluded from considering the communication.

Nonetheless, the Committee declared the case inadmissible as the applicants had not sufficiently exhausted domestic remedies.

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