Safi Rehman v. Hungary

The author of the communication is Safi Rehman, a national of Afghanistan born on 7 January 1995. He claims that the State party has violated articles 2 (3) (a) and 7 of the Covenant. The Optional Protocol entered into force for the State party on 7 December 1988. The author is represented by counsel.

On 24 February 2017, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State party to refrain from removing the author to Bulgaria while the communication was under consideration by the Committee. Despite the interim measures, the author was deported to Bulgaria on 11 April 2017.

In the first half of 2014, the author left Afghanistan in fear of persecution on the grounds that he was actively engaged in activities that were considered to be illegal in the eyes of the Taliban. The author used to play guitar and participated in concerts. The author explains that the Taliban attacked a concert where he was present and beat him severely with the butts of their rifles. After that incident, he received regular threats from the Taliban and decided to flee Afghanistan.

The author spent two years in Türkiye, where he tried to make a living as a musician, without success. In July 2016, he left Türkiye and went to Bulgaria, where he was intercepted and detained by the Bulgarian authorities. He indicates that he was not heard by a judge prior to his detention.

He spent approximately one and a half months in Bulgaria. He was detained for about a month in a closed reception centre and was then transferred to an open reception centre in Harmanli. The author explains that due to his seriously dire psychological state at that time, he has difficulty remembering the names of the places where he was detained and the length of time that he spent at those places. He indicates that the reception conditions in the detention facilities were extremely harsh. In the closed reception centre, he shared a 20 to 25 m2 room with 10 to 15 other people with only four to five beds, which were taken by those with the power to intimidate others. They were provided with thin blankets that were not changed during his stay, and the rooms were infested with mosquitos, bedbugs and lice. There were only two showers and two toilets for around 100 people and there was no hot running water. Food, usually bread and soup, was provided only twice a day. The author was not provided access to legal or psychological assistance or to non-governmental organizations (NGOs), and he could not communicate with anyone.

The author indicates that the detained asylum-seekers often experienced verbal and physical abuse from the guards. The police used to hit them, including the author, with their sticks. On two occasions the author was severely abused by the police, who went into his room while he was sleeping and severely beat him and other asylum-seekers. As a result, he was transferred to hospital.³ The author indicates that the conditions at the open reception centre in Harmanli, where he was transferred to later, were similarly harsh, particularly with regard to access to food and the presence of bugs, but he had access to the Internet and a bed.

3. Date not provided. ↩

The author indicates that he decided to leave Bulgaria. He spent approximately two months in Serbia,⁴ mostly in Belgrade. Having made contact with a smuggler, he went to Subotica, near the Hungarian border. On 16 October 2016 he left Serbia, and illegally entered Hungary on 17 October 2016, in a train wagon, and was apprehended in Gyor by the police. He expressed his wish to apply for asylum. He was then handed over to the Office of Immigration and Nationality, which recorded his application and ordered his detention in the Closed Asylum Reception Centre of Kiskunhalas based on the need to establish his identity and the risk of him absconding.

4. The author did not provide any detail about how he went to Serbia. ↩

On 7 November 2016, the Office of Immigration and Nationality issued a decision (based on article 18 (1) (b) of the Dublin III Regulation) establishing that Bulgaria was responsible for the examination of the author’s asylum application and ordering the author’s transfer to Bulgaria. The author submits that he only had a short interview before the decision was delivered, during which he was not asked any questions in relation to Bulgaria, and he was not given any information or any opportunity to react to the potential applicability of the Dublin III Regulation in his individual case. The author, without legal assistance, challenged the decision.

In its decision, the Office of Immigration and Nationality stressed that the Bulgarian asylum authority, upon receiving a request from the Office of Immigration and Nationality for assurances, always gave the same response, in which it listed the various services and rights that asylum-seekers were entitled to in Bulgaria. The Office of Immigration and Nationality noted that “since the author is a grown-up man with no relatives in another member State, he would not face a real risk of inhuman and degrading treatment upon his return to Bulgaria”.⁵

5. Office of Immigration and Nationality decision of 7 November 2016. ↩

On 13 December 2016, the Administrative and Labour Court of Szeged ruled that the decision of the Office of Immigration and Nationality was lawful because it was in line with the Dublin III Regulation. The author considers that the Court did not assess the reception conditions in Bulgaria or his individual circumstances. The decision is final and cannot be appealed. The author was not represented by a lawyer in the procedure.

On 11 January 2017, the Cordelia Foundation for the Rehabilitation of Torture Victims, based in Hungary, issued a psychological expert’s opinion at the request of the author’s counsel.⁶ The expert’s opinion indicates that the author has repeatedly been a victim of seriously inhuman treatment, and suffers from the effects of such treatment, amounting to post-traumatic stress disorder. The Cordelia Foundation stated that the alleged forms of torture and inhuman treatment that the author had been subjected to in Afghanistan and Bulgaria were in line with the notorious forms of abuse reported in those States. The Cordelia Foundation also stated that the author should be placed in an open reception centre and was in dire need of psychological therapy in order to restore the integrity of his personality. The author indicates, in his complaint to the Committee, that despite the Cordelia Foundation’s opinion, the Office of Immigration and Nationality (renamed the Immigration and Asylum Office as of J January 2017) did not place him in an open centre.

6. According to the information provided, the author was not represented during the legal proceedings but decided to be represented by counsel after the State party ruled on his deportation to Bulgaria under the Dublin III Regulation. ↩

The author claims a violation of his rights under articles 2 (3) (a) and 7 of the Covenant if he is deported to Bulgaria.

He claims that there are substantial grounds to believe that he is at a real risk of irreparable harm if he is deported from Hungary to Bulgaria. He indicates that the reception and detention conditions in Bulgaria amount to inhuman and degrading treatment. He adds that the Committee granted interim measures in three instances⁷ to halt the returns of vulnerable asylum-seekers to Bulgaria from Hungary and Austria, based on submissions arguing that the return of asylum-seekers would constitute an irreparable breach of article 7 of the Covenant. Regarding the reception and detention conditions, the author refers to reports describing the poor hygiene conditions, abusive and violent treatment by guards, overcrowding, poor nutrition, and substandard and insalubrious material conditions, as well as a lack of medical care, of interpreters and of information on asylum procedures.

7. X v. Hungary (CCPR/C/125/D/2901/2016) (declared inadmissible because the author voluntarily left the State party), Baharuddin v. Hungary (CCPR/C/125/D/2923/2016) (non-violation of the Covenant) and N.H. and N.M. v. Austria (CCPR/C/124/D/2940/2017) (discontinued due to loss of contact). ↩

The author also notes that credible sources indicate that asylum-seekers entering Bulgaria irregularly as well as returnees under the Dublin III Regulation are likely to be detained. The author submits that his transfer to Bulgaria, which could potentially result in detention, would also constitute irreparable damage since it would seriously hinder his fragile mental state. The author explains that there is no access to mental health services and no procedure for identifying vulnerable asylum-seekers. He refers to the research note of the European Council on Refugees and Exiles and the European Legal Network on Asylum⁸ concerning the reception conditions and procedural safeguards in Bulgarian asylum procedures, which states that “vulnerable asylum-seekers continue to be held in detention as there is neither a mechanism to identify their vulnerability in detention (further exacerbated by the lack of interpretation to enable effective communication) nor a means to release them, other than the six-month judicial review period”.

8. Research note: reception conditions, detention and procedural safeguards for asylum-seekers and content of international protection status in Bulgaria. ↩

The author reports that after the Office of the United Nations High Commissioner for Refugees lifted its call not to return asylum-seekers to Bulgaria, the European Council on Refugees and Exiles⁹ and Amnesty International¹⁰ continued to call for the suspension of transfers to Bulgaria because of inhumane reception conditions and systematic deficiencies in the asylum system.

9. See https://www.ecre.org/wp-content/uploads/2016/07/2014_04_04_Bulgaria_suspension-April-2014.pdf. ↩
10. See https://www.amnesty.org/en/documents/eur15/002/2014/en/. ↩

The author also claims that the Bulgarian authorities treat asylum-seekers with excessive force and brutality and that attacks on migrant and refugees are rarely, if ever, punished. The author refers to various sources, including a statement made by the United Nations High Commissioner for Human Rights.¹¹

11. See https://www.ohchr.org/en/press-releases/2016/08/jailing-migrants-not-solution-bulgarias-migration-challenges-zeid?LangID=E&NewsID=20365. ↩

The author claims that the State party violated his rights under article 2 (3) (a), read in conjunction with article 7, of the Covenant, in that neither the decision of the Office of Immigration and Nationality to return him to Bulgaria nor the judicial review of that decision by the Administrative and Labour Court of Szeged provided him with effective remedies. The author had only one hearing during his asylum proceedings and was not questioned at that time about the individual circumstances relating to his potential transfer to Bulgaria. This violated his right to be heard. The arguments provided by the authorities were purely legalistic and did not demonstrate an individualized examination of his case.

On 15 May 2017, the State party submitted its observations on the admissibility and the merits of the communication. The State party considers that, according to the Committee’s rules of procedure, the Committee is to ascertain “that the individual claims, in a manner sufficiently substantiated, to be a victim of a violation by that State party of any of the rights set forth in the Covenant”. The State party is of the position that the complaint of the author is not sufficiently substantiated, as he failed to invoke the alleged violation of his rights during the asylum procedure giving rise to the present complaint. The State party believes that the genuineness of his allegations may be questioned, but even if the allegations were true, by not raising his claims before the Hungarian authorities, he did not allow the authorities to consider these factors during the proceedings and the author’s failure cannot be attributed to the State party.

Furthermore, the author did not complain about ill-treatment directed individually against him, but rather complained about the poor conditions of Bulgarian reception centres in general. So far, these circumstances have not been considered by the European Union or its members States to be of such severity as to entail that Bulgaria would be deemed not to be a safe country for the purposes of the Dublin procedure. Therefore, the alleged circumstances cannot sufficiently substantiate a violation of rights of the Covenant.

In his submission, the author claims that the State party violated article 2 (3) (a) read in conjunction with article 7 of the Covenant. The author claimed that during the personal interview, the asylum authority did not ask any questions of the author concerning his experiences in Bulgaria. Reflecting on this allegation, the State party wishes to emphasize that the main aim of the personal interview is not to identify the events after asylum-seekers leave their country of origin, but to provide the appropriate basis for deciding whether the conditions for international protection or subsidiary protection are met. Nevertheless, with regard to the fact that relevant information may be revealed also with regard to the route, there is a part of the personal interview that covers these issues.

In spite of this, according to the written minutes of his personal interview held in Gyor on 17 October 2016, in response to the question relating to happenings en route and his stay in Bulgaria, the applicant stated only that “I was in Bulgaria for six months, where fingerprints were taken from me.”

During the same interview, the applicant was asked on two occasions whether he was suffering from any severe diseases or was receiving medical treatment. The author stated each time that even though he was suffering from a heart condition, he was not taking any medication.

Therefore, the authority was not apprised of any alleged ill-treatment of the author in Bulgaria, or that he should be considered a vulnerable person requiring special treatment, despite the clear opportunity to reveal such circumstances or to prove his vulnerability.

Thus, the facts presented by the author to the asylum authority and to the Administrative and Labour Court of Szeged are different from the facts submitted to the Committee in the present communication.

As regards the author’s expulsion to Bulgaria, the State party wishes to note that both the authority’s decision about the expulsion, and the reasoning part of the final judgment reviewing the authority’s decision, notes that when it has been established that it is the responsibility of a State to carry out the asylum procedure, the country responsible will be obliged to take the foreigner back.

Consequently, the State party assessed all the circumstances presented and concluded that the present application was solely intended to postpone the implementation of the Hungarian court’s final decision, and therefore decided to expel the author to Bulgaria on 11 April 2017.

The State party wishes to emphasize that since 1 January 2007, Bulgaria has been a member of the European Union, and no decision has been taken so far that would indicate that Bulgaria is not a safe country, in contrast with, for example, Greece.¹² Furthermore, other member States continue to send asylum-seekers back to Bulgaria under the Dublin III Regulation.

12. See, for example, European Court of Human Rights, M.S.S. v. Belgium and Greece (application No. 30696/09), judgment of 21 January 2011; or European Commission, Recommendation (EU) 2016/1117 of 15 June 2016. ↩

Hungarian authorities also regularly check with Bulgaria and enquire whether applicants are being held under appropriate conditions and are receiving adequate treatment. According to the Bulgarian authorities’ answers: “During the procedure, the applicant is entitled to residence in Bulgaria, food and accommodation, the same social assistance as a Bulgarian national, the same health insurance, health care and free medical treatment as a Bulgarian national, moral support, a registration card, and a translator/interpreter. The applicants are being held in registration-reception centres, or at other accommodation centres following the consideration of their health status and family and financial status. Qualified health-care personnel are provided in the reception centres.”

It is also important to underline that by performing a transfer within the framework of the Dublin procedure, Hungary only enforced the law accepted by the European Union and obeyed by all members.

For the above reasons, the State party requests the Committee to conclude that the author’s application is not sufficiently substantiated and to declare the complaint inadmissible.

The author provided his comments on the State party’s observations on 12 April 2022, reiterating that he was never given a chance to raise his claims before domestic judicial institutions. According to domestic legislation, the asylum authority has the obligation to ascertain the relevant facts of the case,¹³ which it failed to do.

13. It is stated in art. 51 (1) of Act No. 140 of 2004 on the General Rules of Administrative Proceedings and Services that “the authority shall ascertain the relevant facts of the case in the decision-making process. If the information available is insufficient, the authority shall initiate an evidence procedure.” ↩

The State party further claims that the main aim of the personal interview is not to identify the events en route, but to provide the appropriate basis for deciding whether the conditions for international protection or subsidiary protection are met. The author contends that this is not in line with the Dublin III Regulation which is directly applicable in European Union member States, as article 5 prescribes a mandatory interview with the applicant, in order to facilitate the process of determining which member State is responsible. The purpose of the interview is also to allow a proper understanding of the information supplied to the applicant in accordance with article 4. The author maintains that he was not informed in accordance with article 4 of the Dublin III Regulation about the importance of the personal interview with regard to determining the member State responsible. During the personal interview he was not asked a single question about the treatment he underwent in Bulgaria, and he did not have a legal representative in the appeal procedure; therefore, the author was not aware of his rights and the fact that if he did not raise a claim, this could be used against him. The author also emphasizes that he was never asked whether he had had any problems in Bulgaria. The only question was “route” (without any explanation as to what the information about the route should cover), whereupon the applicant briefly described how he travelled from Afghanistan via Türkiye, Bulgaria and Serbia to Hungary.

The interview immediately moved on to questions about Serbia, and the author was informed in detail that on the basis of what he had said, the authority considered Serbia to be a safe third country for him, and that he had three days to submit evidence why he did not have the opportunity to seek protection in Serbia or why he did not consider the protection there to be effective. Not only was the author not informed about the Dublin procedure with regard to Bulgaria or given the opportunity to put forward arguments why Bulgaria was not safe for him, but he was made to believe by the asylum authority that in its examination of his asylum application it would likely conclude that Serbia was a safe third country for him, and that he should submit evidence if he disagreed. The author could therefore not possibly be aware of the need to advance any arguments with regard to Bulgaria, as he was not even aware that the State party was considering sending him back to Bulgaria.

The author also contests the State party’s argument that he did not complain about the way he had been treated in Bulgaria. The author had indicated to the State party’s authorities that he had been physically abused by the police in the detention centre on two occasions and was also hospitalized due to the abuse.

According to the Committee’s jurisprudence, the individual risk is not only assessed on the basis of person-specific evidence but also on the basis of “all relevant facts and circumstances”, including background information on the general human rights situation in the country.¹⁴

14. R.M. and F.M. v. Denmark (CCPR/C/126/D/2685/2015), para. 9.3; X v. Denmark (CCPR/C/114/D/2389/2014), para. 7.3; and Pillai v. Canada (CCPR/C/101/D/1763/2008), para. 11.4. ↩

In regard to the domestic court procedure, the author was not presented with the chance to be heard on the possible applicability of the Dublin III Regulation in his case and was not given the possibility to say whether or not his return there would, in his view, be in breach of article 7 of the Covenant, given that under section 49 (8) of Asylum Act, judicial review of the decision regarding the application of the Dublin III Regulation is a nonlitigious procedure in which there is no personal hearing. The lack of a personal hearing reduced the judicial review to a mere formality, in which the judge had no other information than the documents in the case file provided by the asylum authority, since the author did not have a legal representative. Moreover, the author had not received any information on the nature and substance of the legal remedy process, therefore he was not in a position to submit the necessary legal arguments.

According to the author, the court should not have limited its judicial review to the points of law, since such a judicial review does not meet the requirement of rigorous scrutiny, as is required in non-refoulement cases.¹⁵ The judicial review by the Administrative and Labour Court of Szeged was also not compatible with preambular paragraph 19 and article 27 of the Dublin III Regulation, according to which the author has the right to an effective remedy that should cover both the examination of the application of the Dublin III Regulation, and of the legal and factual situation in the member State.¹⁶

15. European Court of Human Rights, Jabari v. Turkey (application No. 40035/98), judgment of 11 July 2000. ↩
16. The author referred to the following case law of the Court of Justice of the European Union on the scope of judicial review in the Dublin procedure: case C-63/15, Ghezelbash v. Staatssecretaris van Veiligheid en Justitie, judgment of 7 June 2016, paras. 36 and 39; and case C-155/15, Karim v. Migrationsverket, judgment of 7 June 2016. ↩

It can therefore be concluded that neither the asylum authority nor the court fulfilled its duty concerning the examination of a possible violation of article 7 of the Covenant in case of deportation of the author to Bulgaria. They both neither took into account the individual circumstances of the author nor looked for relevant and up-to-date country information on Bulgaria.

In relation to the State party’s argument that European Union member States considered Bulgaria a safe country in the context of the Dublin III Regulation, the author notes that according to the Asylum Information Database (AIDA) report on Bulgaria from the material time, there were a total of 26 instances where member States suspended the return of asylum-seekers to Bulgaria under the Dublin III Regulation in 2016.¹⁷ The practice was similar in 2017, with suspensions of transfers ordered in 18 cases.¹⁸

17. See the 2016 update, available from https://asylumineurope.org/reports/country/bulgaria/. ↩
18. See the 2017 update, available from https://asylumineurope.org/reports/country/bulgaria/. ↩

Following the unrest in the Harmanli camp at the end of 2016, the Office of the United Nations High Commissioner for Refugees (UNHCR) stated on 29 November 2016 that “reception conditions are also substandard at other reception centres and detention facilities in Bulgaria. The temporary detention facility of Elhovo, near the border with Turkey, is occupied at nearly 130 per cent of its capacity in deplorable conditions. While UNHCR does not in principle object to the return of people who have not been granted international protection, such returns should only take place if all procedural guarantees are fully respected, including access to a fair and efficient asylum procedure and to effective judicial review.”¹⁹

19. “Bulgaria: UNHCR concerned about calls for expulsions following tensions at overcrowded and substandard reception centre for asylum-seekers”, available at https://www.refworld.org/docid/583d871a4.html. ↩

With regard to the State party’s observation that the author did not state at the interview that he suffered from any serious disease (apart from a heart condition), the author wishes to emphasize that apart from asking the question regarding serious diseases, the State party did not perform any identification of the specific needs of the author. In this context, the asylum authority failed to comply with the provision set out in article 3 (1) and (2) of Government Decree No. 301/2007 (XI.9.) on the implementation of the Asylum Act to identify vulnerable asylum-seekers. The author points out that the Hungarian authorities cannot require an asylum-seeker experiencing mental health problems to provide a detailed account about his health conditions while he is suffering from the symptoms of posttraumatic stress disorder. It is clear from the psychological expert opinion that the author, based on his symptoms, had been the victim of multiple and prolonged instances of inhuman treatment and had been traumatized on numerous occasions. He was constantly suffering from the effects of previous inhuman treatment and trauma. This psychological opinion was issued on 11 January 2017 and was submitted to the asylum authority, and despite its knowledge of it, the authority did not take any measures but instead deported the author. The State party cannot now claim that it was not in possession of any information that the author was a vulnerable person.

As to the State party’s observation that the Hungarian asylum authority has turned to Bulgaria in several other cases to find out whether applicants are being held in appropriate conditions, and receive adequate treatment, the author wishes to point out that this was not done in his case, and even if it had been done, the answer from the Bulgarian authorities is so general that it cannot be considered as a sufficient individual guarantee that the applicant would not be subjected to inhuman and degrading treatment and that his special needs would be taken care of.²⁰

20. As recommended by the European Court of Human Rights in Tarakhel v. Switzerland (application No. 29217/12), judgment of 4 November 2014, para. 122. ↩

On the basis of the above, the author maintains his claim that the Hungarian authorities failed to fulfil their obligations to provide effective guarantees to protect him²¹ against arbitrary removal to Bulgaria resulting in violations of article 7 and article 2 (3) (a) of the Covenant.

21. The author does not raise any violation under article 13 of the Covenant. ↩

On 28 June 2022, the State party submitted additional observations on the admissibility and the merits of the communication.

The State party disagrees with the author’s assertion that he did not have the opportunity to raise his claims during the asylum procedure. The author was provided with all relevant information from the asylum authority concerning his procedural rights and obligations, as recorded in the electronic register of the asylum authority on 17 October 2016. In many other cases, this information has proved to be sufficient, given that in several cases, individuals have claimed to have suffered harm in other countries (while en route). Obviously, those who have not been harmed would not bring this matter up in the procedure. In the present case, the State party is of view is that the author did not claim that he had been subjected to any harm while en route in the asylum procedure, because he did not suffer harm, and only lodged his complaint later to prevent his return under the Dublin procedure.

The legal provision referred to is misleading, because it gives the impression that the burden of proof is on the asylum authority. In fact, the legal provision referred to – which is correctly not article 51 but article 50 of Act No. 140 of 2004 on the General Rules of Administrative Proceedings and Services – requires the authority to ascertain the facts, while the burden of proof remains on the person who claims something.

In this context, the State party refers to the fact that article 3 (2) (b) of Act No. 140 of 2004 amends this provision to the extent that “the administrative authorities shall ex officio ascertain the relevant facts of the case and specify the type and extent of evidence admissible, independent from the authors’ requests concerning evidence, however, in the process of ascertaining the relevant facts of the case all circumstances that may be of importance shall be taken into consideration”.

This rule is further clarified in articles 40 and 41 of Act No. 80 of 2007 (the Asylum Act) (in force at the time) and article 75 of Government Decree No. 301/2007 (XI.9.) on the implementation of Act No. 80 of 2007 (the Asylum Act), which clearly state that the applicant must prove or at least establish the plausibility of his or her claims.

The State party also refers to paragraphs 196 and 197 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, which establish the applicant as the primary holder of the burden of proof, stating that, since applicants are often not in a position to obtain concrete evidence, the burden of proof (contrary to the principle misleadingly invoked by the author’s counsel) is shared between the applicant and the authority. Although the abovementioned asylum legislation also contains provisions on the typical issues on which the burden of proof is placed on the asylum authority – in this context, obtaining the country information is of particular relevance – neither the legislation nor common sense requires the asylum authority to gather evidence to examine circumstances that the applicant does not declare, that is, of which the asylum authority is not aware.

The previously stated position that the asylum procedure is not primarily aimed at determining the route, but at obtaining the information necessary to assess the application, is factual. At the same time, the information necessary for examination of the application includes a determination of the competence attributed to the member States concerned, and the asylum authority examines this issue. During the interview with the asylum-seeker, the asylum-seeker has the opportunity, in accordance with the relevant regulations, to coherently tell the story, the reasons, the routes and any relevant issues. The asylum authority helps the asylum-seeker to have his or her application examined, provided that all the relevant facts are brought to light. However, it should be stressed again that if someone does not give any indication that they have been abused anywhere, the asylum authority obviously cannot ask clarifying questions about this either.

The mere fact that a procedure is not adversarial does not in itself mean that the remedy is exhausted. The author, like other similar foreigners, had the opportunity to present his views and observations to the court, but he did not do so. The author had been informed of the nature of the procedure. The fact that the court did not examine the claims on which the author did not rely either before the asylum authority or before the court does not, in the State party’s view, call into question the effectiveness of the procedure, but rather shows that the author did not rely on the fact of the harm he had suffered in Bulgaria until he was advised of it.

In this context, the State party points out that both the asylum authority and the courts assess applications on their merits. In other words, if a foreigner does not refer to individual or systemic infringements that have happened to him or her or to others in Bulgaria but tells in his or her own words what has happened to him or her, this will be taken into account by the authority or the court in the same way. However, this certainly cannot happen if the foreigner does not claim any harm.

When taking its decision, the asylum authority was in possession of the information collected by the country information centre on Bulgaria, and, in contrast to the statements made by the author, assessed that the application of the Dublin III Regulation did not cause any harm to the author.

The asylum authority does not judge Bulgaria on the basis of the position of an NGO and does not view the various reports (on the basis of which Hungary has not taken a decision to terminate returns) with bias against the author, but in an objective manner.

In the context of the UNHCR report referred to by the author in his comments, the State party points out that a single (or even several) incidents in a reception centre are not grounds for declaring a European Union country not safe from an asylum perspective, neither on the basis of the practice of the Hungarian authorities or on the basis of the practice of other member States’ authorities. Accordingly, Hungary, having continuously monitored international events, including the events in Bulgaria, and having examined them at the time, decided (as did other European Union countries and the European Commission) that there were no grounds for declaring Bulgaria a country that was not safe, either in general, or in relation to the author in the present case (in particular because he had not indicated anything that would have raised this issue at all).

The State party reiterated that the author did not claim that he had suffered psychological, physical or other serious forms of violence which would have explicitly indicated that he belonged to the category of persons requiring special treatment under Act No. 80 of 2007 (the Asylum Act). Applicants have the opportunity to provide substantive answers to the questions put to them in this respect, in case they have or have had such a problem. Neither the asylum authority’s questions nor the answers are psychological assessments, nor does the asylum authority expect authors to provide a detailed self-diagnosis. However, feedback such as toothache, headache, dizziness, insomnia and anxiety are issues that are usually mentioned by applicants.

Refugee reception centres have a 24-hour health service, providing applicants with health services and other preventive means to respond to their health complaints.

With regard to the document referred to by the author’s counsel, the State party would like to point out that the content of the document – apart from being highly questionable – is not binding on the asylum authority – all the more so since this document (and the author’s complaints) were prepared after the author was informed of the decision to expel him. The State party would also like to point out that the mere fact that someone has the symptoms listed in the document (e.g. toothache, stomach ache, insomnia or anxiety) does not in itself mean that they are a vulnerable person or that they should not be expelled. Other complaints made by the author during his asylum detention were also aimed at him being transferred to open accommodation, and the doctor who examined him did not find his complaints of kidney, heart and eye problems to be justified. The medical file also shows that he is taking antidepressant medication, but this is recommended to applicants by the medical staff of the Cordelia Foundation for the Rehabilitation of Torture Victims, which supports people with a migratory background.

It is for the authorities or the courts to decide on the question of whether a foreigner belongs to the category of persons requiring special treatment under the law, given the fact, as has been repeatedly emphasized, that the author only brought up some of the circumstances indicated in the complaint after he had become aware of his expulsion.

Since the author was expelled on 11 April 2017 and has not been seen by the asylum authorities since that date, in addition to the comments above, the State party maintains its position previously expressed.

The Committee notes that the adoption of interim measures pursuant to rule 94 of its rules of procedure, in accordance with article 1 of the Optional Protocol, is vital to the role entrusted to the Committee under that article. Failure to respect the interim measure requested by the Committee with a view to preventing irreparable harm undermines the protection of the rights enshrined in the Covenant.

As indicated in paragraph 19 of the Committee’s general comment No. 33 (2008), failure to implement interim measures is incompatible with the obligation to respect in good faith the procedure of individual communication established under the Optional Protocol. The Committee is therefore of the view that, by failing to respect the request for interim measures transmitted to the State party on 24 February 2017 and reiterated on 4 April 2017, the State party failed in its obligations under article 1 of the Optional Protocol.²²

22. B.A. et al. v. Austria (CCPR/C/127/D/2956/2017), paras. 9.1 and 9.2; F.F.J.H. v. Argentina (CCPR/C/132/D/3238/2018), paras. 16.1 and 16.2; and Lapshin v. Belarus (CCPR/C/135/D/2945/2017), paras. 7.1 and 7.2. ↩

Before considering any claim contained in a communication, the Committee must decide, in accordance with article 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes that the State party has not explicitly objected to the admissibility of the communication under article 5 (2) (b) of the Optional Protocol, although it stated that the author had failed to raise the alleged violation of his rights during the domestic asylum procedure, contesting the application of the Dublin III Regulation, and had only raised it in the communication. The Committee also observes that the author appealed against the negative decision by the Office of Immigration and Nationality on his asylum application to the Administrative and Labour Court of Szeged, which dismissed the appeal on 13 December 2016. Since the decisions of the Court cannot be appealed, no further remedies are available to the author. Accordingly, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

The Committee notes the State party’s challenge to the admissibility of the communication on the grounds that the author’s claims under article 7, and article 2 (3) (a) read in conjunction with article 7, of the Covenant, are manifestly ill-founded. The Committee notes that the author raised several risk factors and potential errors during the domestic asylum and court proceedings that, cumulatively, sufficiently substantiated his claims for the purposes of admissibility.

The Committee thus declares the communication admissible insofar as it appears to raise issues under article 7, and article 2 (3) (a) read in conjunction with article 7, of the Covenant, and proceeds to its consideration of the merits.

The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes the author’s claims under article 7 that his deportation to Bulgaria, based on the Dublin III Regulation principle of “first country of asylum”, would expose him to a real risk of irreparable harm, as he would likely suffer inappropriate reception conditions, including lack of food, liquids and sanitation, and serious shortcomings in the asylum procedure. Indeed, according to the author, he would likely be detained and held in conditions amounting to inhuman and degrading treatment, as described in various reports and also in the jurisprudence of the European Court of Human Rights, concerning the routine detention of asylum-seekers. The Committee further observes that according to the author – who due to his seriously dire psychological state has difficulty remembering the names of the places and the amount of time spent at these places – he was subjected to ill-treatment by the police at the closed reception centre and at the Harmanli open centre in Bulgaria, as well as to poor material conditions and the absence of medical services and other kinds of assistance. The Committee further notes the author’s claims that the asylum and judicial procedures suffered from procedural errors, such as the absence of a personalized assessment on the application of the Dublin III Regulation in his circumstances, and that he was consequently deprived of the right to an effective remedy, in violation of article 2 (3) (a), read in conjunction with article 7, of the Covenant.

The Committee recalls its general comment No. 31 (2004), in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by article 7 of the Covenant.²³ The Committee has also indicated that the risk must be personal and that the threshold for providing substantial grounds to establish that a real risk of irreparable harm exists is high.²⁴ All relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin. Furthermore, the Committee recalls its jurisprudence that it is generally for the organs of the States parties to the Covenant to review and evaluate facts and evidence in order to determine whether such risk exists,²⁵ and that considerable weight should be given to the assessment conducted by the State party, unless it is found that the evaluation was clearly arbitrary or amounted to a manifest error or denial of justice.²⁶

23. See para. 12. ↩
24. X v. Denmark (CCPR/C/110/D/2007/2010), para. 9.2; A.R.J. v. Australia (CCPR/C/60/D/692/1996), para. 6.6; and X v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18. ↩
25. Z.H. v. Australia (CCPR/C/107/D/1957/2010), para. 9.3. ↩
26. Y.A.A. and F.H.M. v. Denmark (CCPR/C/119/D/2681/2015), para. 7.3; and Rezaifar v. Denmark (CCPR/C/119/D/2512/2014), para. 9.3. ↩

As regards the author’s claims of a violation of article 2 (3) (a), read in conjunction with article 7, of the Covenant, the Committee notes the author’s claims that the asylum and judicial procedures suffered from procedural errors, such as lack of consideration of the author’s mental health and the absence of a personalized assessment on the application of the Dublin III Regulation in his circumstances, and that he was consequently deprived of the right to an effective remedy. In that regard, the Committee notes the author’s claim that the asylum and judicial review procedures did not represent an effective remedy, as he was heard only once, at the asylum interview, whereas he was not questioned about his specific circumstances in relation to a potential transfer to Bulgaria during the proceedings before the authorities. The Committee in particular notes the author’s claim that the Hungarian authorities exclusively focused on the Dublin III Regulation, without assessing how the Bulgarian asylum system functions in practice, that is, whether the author would have access to a fair and efficient asylum procedure in Bulgaria and whether he would have access to psychological assistance.

The Committee further notes the State party’s submissions that the author was properly informed about his rights and obligations during the asylum procedure, that he did not mention any circumstances during the asylum and judicial procedures that he has referred to in his communication to the Committee, that he claimed to be physically and mentally fit before and during the asylum interview,²⁷ and that his right to remedy was secured effectively as he appealed the negative asylum decision to the Administrative and Labour Court of Szeged.

27. See para. 4.5 above: The author stated each time that even though he was suffering from a heart condition, he was not taking any medication. ↩

The Committee observes that the material submitted by the author,²⁸ on the situation of asylum-seekers in Bulgaria, indicates that there is a lack of available places in the reception facilities for asylum-seekers. Moreover, these places are often in poor sanitary condition and lack adequate medical personnel and assistance. However, the Committee notes that the author has not provided the domestic authorities with sufficient personal information as to why he should not be returned to Bulgaria. The Committee further observes that the author was informed about the application of the Dublin procedure in his case by the Office of Immigration and Nationality, that he was heard once in the presence of an interpreter and that the State party considered that the interview had been held in a fair and objective manner. The Committee notes that the author’s appeal against the negative asylum decision failed because it did not meet the burden of allegation and proof, and that his explanation for that failure was not persuasive. In the circumstances, the Committee observes that the author has not substantiated his claim that he would face a real and personal risk of inhuman or degrading treatment if returned to Bulgaria.²⁹ The Committee considers that the mere fact that the author may be possibly confronted with severe difficult circumstances upon his return to Bulgaria does not in itself mean that he would be in a special situation of vulnerability and in a situation significantly different to that of many other Dublin returnees.³⁰

28. For example, see https://www.unhcr.org/ceu/9797-unhcr-calls-bulgaria-ensure-access-asylum-seekers.html. ↩
29. See, for example, B.M.I. and N.A.K. v. Denmark (CCPR/C/118/D/2569/2015), para. 8.6. ↩
30. Baharuddin v. Hungary, para. 10.7. ↩

The Committee notes the State party’s argument that the main aim of the personal interview is not to identify the events after authors leave their country of origin but to provide the appropriate basis for deciding whether the conditions for international protection or subsidiary protection are met. However, the State party indicates that since relevant information may also be revealed about the route, there is a part of the personal interview covering these issues. The Committee also notes the argument of the State party that in the minutes of the author’s personal interview, and although he had such an opportunity, the author did not mention any alleged ill-treatment in Bulgaria nor indicate that he suffered from any serious disease (apart from a heart condition). The Committee observes that the State party notes that according to the State party’s legislation, the authorities have a duty to ascertain the facts presented, while the burden of proof remains on the claimant. Therefore, the failure of the author to raise any en route violation and claims cannot be attributed to the State party. Regarding the opinion of the psychological expert that was referred to by the author’s counsel, the Committee takes note of the State party’s observations that the content of the document is not binding on the asylum authority and was prepared after the author was informed of the decision to expel him.

The Committee therefore notes that, in the present case, the author’s claims mainly reflect his disagreement with the decision of the State party’s authorities to return him to Bulgaria as his country of first asylum, and that he failed to explain why that decision was manifestly unreasonable or arbitrary or amounted to a denial of justice.³¹ Accordingly, the Committee cannot conclude that the removal of the author to Bulgaria by the State party would constitute a violation of article 7 or that the author’s rights under article 2 (3) (a), read in conjunction with article 7, of the Covenant, have been violated.

31. See, for example, P.T. v. Denmark (CCPR/C/113/D/2272/2013), para. 7.4; and Baharuddin v. Hungary, para. 10.8. ↩

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the author’s removal to Bulgaria would not constitute a violation by the State party of the author’s rights under article 7, and article 2 (3) read in conjunction with article 7, of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the extradition of the author pending the consideration of his communication before the Committee was in contradiction to the Committee’s request for interim measures of protection in the present case, constituting a violation by the State party of its obligations under article 1 of the Optional Protocol.³²

32. See, for example, N.S. v. Russian Federation (CCPR/C/113/D/2192/2012), para. 11; and K.B. v. Russian Federation (CCPR/C/116/D/2193/2012), para. 11. ↩

The State party is under an obligation to avoid violations of article 1 of the Optional Protocol in the future, to comply with the requests of the Committee for interim measures, and to ensure that, in case such requests are made, authors are not removed from the State party’s jurisdiction while their respective case is under consideration by the Committee.