CAT/C/62/D/721/2015
had filed an asylum application in Bulgaria on 18 March 2015, found that that State was
responsible for examining the application. 4 It did not therefore consider his asylum
application and ordered the complainant to be transferred to Bulgaria, in accordance with
article 31a (1) (b) of the Federal Asylum Act of 26 June 1998.
4.2
On 26 October 2015, the complainant lodged an appeal with the Federal
Administrative Court against the aforementioned decision of the State Secretariat for
Migration, calling for the decision to be annulled and for his asylum application to be
considered. He claimed, in sum, that the reception conditions and accommodation in
Bulgaria were appalling, that the situation of asylum seekers there amounted to a genuine
humanitarian disaster, as was detailed in numerous international reports, and that he had
been held in prison for nine months in degrading conditions, exposed to the risk of disease
and to poor nutrition. By a judgment of 29 October 2015, the Court rejected the
complainant’s appeal. It found, inter alia, that there was no real basis for his fear of being
sent back to Afghanistan by the Bulgarian authorities and that he had not presented any
specific evidence to demonstrate that Bulgaria did not respect the principle of nonrefoulement and would therefore fail to comply with its international obligations by
returning him to a country in which his life, physical integrity or liberty would be seriously
threatened or where he would be at risk of being sent to such a country. Furthermore, the
Court held that the complainant had not shown that his living conditions in Bulgaria would
be so difficult or harsh as to constitute treatment contrary to article 3 of the European
Convention on Human Rights or article 3 of the Convention against Torture.
4.3
The State party notes that article 3 of the Convention against Torture, which is
invoked by the complainant, provides that no State party should expel, return (“refouler”)
or extradite a person to another State where there are substantial grounds for believing that
he or she would be in danger of being subjected to torture (para. (1)). For the purpose of
determining whether there are such grounds, the competent authorities should take into
account all relevant considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of human rights (para.
(2)). The Committee has given specific form to the elements of this article in its
jurisprudence and, in particular, has issued precise instructions on the application of this
provision in its general comment No. 1 (1997) on the implementation of article 3 of the
Convention in the context of article 22, which stipulates that the complainant must establish
that there is a personal, present and serious danger of being tortured in the event of
expulsion to the country of origin. The risk of torture must be assessed on grounds that go
beyond mere theory or suspicion. In addition, the allegations must demonstrate that the risk
is serious. Paragraph 8 of the general comment lists the information that must be taken into
account in order to conclude that there is such a risk, inter alia: evidence of a consistent
pattern of gross, flagrant or mass violations of human rights in the State concerned
(subparas. (a) and (d)); claims by the complainant that he or she was tortured or maltreated
in the recent past, and independent evidence thereof (subparas. (b) and (c)); information on
the complainant’s political activities within or outside the State of origin (subpara. (e));
evidence as to the complainant’s credibility (subpara. (f)); and factual inconsistencies in the
complainant’s claims (subpara. (g)).
4.4
The State party notes that article 16 of the Convention extends the protection against
acts of torture afforded by certain provisions of the Convention to acts of cruel, inhuman or
degrading treatment or punishment. In accordance with the Committee’s established and
explicit jurisprudence, the obligations described in article 3 of the Convention do not
encompass situations of ill-treatment envisaged in article 16 of the Convention. 5 Article 3 is
confined in its application to cases where there are substantial grounds for believing that the
4
5
4
Pursuant to article 18 (1) (b) of Regulation (EU) No. 604/2013 of the European Parliament and of the
Council of 26 June 2013 establishing the criteria and mechanisms for determining Member State
responsibility for examining an application for international protection lodged in one of the Member
States by a third-country national or a stateless person (recast) (OJ L 180/31 of 29 June 2013, the
Dublin III Regulation).
See T.M. v. Sweden (CAT/C/31/228/2003), para. 6.2; B.S. v. Canada (CAT/C/27/166/2000), para. 7.4;
see also Manfred Nowak and Elisabeth McArthur (eds.), The United Nations Convention Against
Torture: A Commentary, 2008, at 183 and also 41 and 75.
GE.18-04727