CCPR/C/130/D/3042/2017
born in 2004; his nephew, born in 2005; his nephew, born in 2007; and his grandson, born in
2008, all nationals of the Syrian Arab Republic. D.I. and O.I. submit the communication on
behalf of their brother, a national of the Syrian Arab Republic, born in 1995. G.D. submits
the communication on behalf of her brother, a national of the Syrian Arab Republic, born in
1992.
1.2
The authors allege that the State party authorities failed to take appropriate measures
to render assistance to their relatives, who were in distress at sea, in violation of their relatives’
rights under article 6 of the Covenant. The authors also claim that the State party authorities
failed to carry out an effective investigation into the events of the shipwreck, in violation of
their relatives’ rights under article 6, read in conjunction with article 2 (3), of the Covenant.
The authors further claim a violation of their rights under article 7 read in conjunction with
article 2 (3) of the Covenant. The Optional Protocol entered into force for the State party on
15 December 1978. The authors are represented by counsel.
Facts as submitted by the authors
2.1
The authors, who are migrants seeking asylum, submitted complaints on behalf of
their relatives who died after the vessel that they had been on board capsized.1
2.2
The authors claim that there are no effective remedies available that would enable
them to submit their claims to domestic authorities. They note that M.J. submitted a
complaint to the Public Prosecutor at the Court of Agrigento, Italy, about the delayed
responses of the Italian and Maltese authorities to his distress calls and the death or
disappearance of two of his sons in the shipwreck. However, neither Italy nor Malta initiated
any investigation into the circumstances of the shipwreck and the public prosecutor has
discontinued the criminal proceedings. The authors further note that A.S. submitted a
complaint to the Public Prosecutor of the Court of Syracuse, Italy, on 15 September 2014.
He claimed that 11 relatives had disappeared in the immediate aftermath of the shipwreck
that occurred on 11 October 2013. From the minutes of the complaint, it would seem that
following a previous complaint by A.S. on 6 September 2014, criminal proceedings were
opened against unknown persons. However, A.S. did not receive any information about the
proceedings or their outcome. After the shipwreck, one of the authors, O.I., contacted the
Red Cross of Malta, the First Secretary of the Italian Embassy in Abu Dhabi – where O.I.
was residing at the time – the Italian Red Cross and the Office of the United Nations High
Commissioner for Refugees, inquiring about the whereabouts of her brother, who had been
on board the vessel. As she did not receive any information about her brother, she travelled
to Italy and Malta to seek information. G.D. lives in Damascus; therefore, it would not be
possible for her to file a complaint before the authorities of the State party. The authors also
note that on 17 May 2017, the Government of Italy was called to answer questions in
parliament on the facts that led to the shipwreck. However, the Government, represented by
the Ministry of Defence, did not address the matter and only stated that the Maritime Rescue
Coordination Centre in Rome (hereinafter, “the Italian rescue centre”) had acted in
accordance with international regulations.
2.3
The authors argue that the failure to open an investigation into the facts that led to the
shipwreck and the subsequent death or disappearance of persons on board the vessel,
including the authors’ relatives, means that they do not have at their disposal an effective
remedy in the State party to challenge the authorities’ shortcomings in their rescue activities.
The authors further argue that they are not obliged to pursue civil remedies in order to exhaust
domestic remedies as their aim is to ensure that those responsible for having put their relatives’
lives at risk and for having caused their death or disappearance are prosecuted and punished.
They claim that civil action would not satisfy that aim, as such action would only focus on
compensatory damages and would not address the issue of the identification and punishment
of those responsible. Even if civil remedies were to be exhausted, they would prove to be
ineffective in the absence of any investigation ascertaining the facts surrounding the
shipwreck and any related responsibility. The authors argue that without a proper
investigation into the shipwreck and the failed rescue operation, they are de facto barred from
seeking civil remedies. They also submit that there are special circumstances exempting them
1
2
A.S. et al. v. Malta (CCPR/C/130/D/3042/2017), paras. 2.1–2.4.