CAT/C/62/D/721/2015
author of a communication would be in danger of being subjected to torture as defined in
article 1 of the Convention.6 Accordingly, the claim under article 16 is inadmissible ratione
materiae, as incompatible with the provisions of the Convention. The following
observations concerning the possible risk of ill-treatment in the event of transfer to Bulgaria
are thus made subsidiarily.
4.5
According to the State party, the complainant has not contested the fact that, since
the Bulgarian authorities have agreed to the request by Switzerland to take him back,
Bulgaria is competent, in principle, to examine his asylum application under article 12 (1)
of the Dublin III Regulation. Concerning his removal to Bulgaria, he claims that he would
not have access to fair and equitable asylum procedures there and that he would not be
protected against arbitrary return to his country of origin, in violation of the principle of
non-refoulement. In support of these allegations, he has produced reports on the
shortcomings of the asylum procedures in Bulgaria and on the low number of non-Syrian
asylum seekers granted refugee status in the country. As is clear, inter alia, from the
reasoning of the Federal Administrative Court in the case, the legislation on the right to
asylum is applied in Bulgaria and the asylum procedures there are not so marred by
structural defects that asylum seekers have no chance of seeing their applications examined
seriously, have no effective remedies or are not protected in fine against arbitrary return to
their countries of origin.
4.6
The Bulgarian authorities expressly agreed to take back the complainant pursuant to
article 18 (1) (b) of the Dublin III Regulation. In so doing, they acknowledged that a
procedure was under way in Bulgaria and recognized their competence to process the
asylum application. In this regard, it is clear from the October 2015 report of the Bulgarian
Helsinki Committee, which is cited by the complainant, that persons who are removed to
Bulgaria by other European Union member States have access, in principle, to asylum
procedures on their return to that country; when a procedure is pending, as seems to be the
case here, the asylum seeker is transferred to a reception centre. According to the
complainant, his detention occurred when he was picked up by the police while in an
irregular situation and before he had filed his application for asylum in Bulgaria. After the
authorities had registered his application, he was released and transferred to housing for
asylum seekers in Sofia. He need no longer fear, in principle, the measures of detention to
which persons who enter the country clandestinely or who remain there without having the
right to do so are liable.
4.7
The State party maintains that there is no real basis for the complainant’s fear that
the Bulgarian authorities will order him to be sent back to Afghanistan. The complainant
has not presented any specific evidence to demonstrate that Bulgaria would not respect the
principle of non-refoulement 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.
Moreover, Bulgaria is a High Contracting Party to the European Convention on Human
Rights and, as such, is subject to the jurisdiction of the European Court of Human Rights.
The complainant will thus be able to lodge an individual application against Bulgaria,
including a request for interim measures, if he believes that he risks being removed from
that country in violation, inter alia, of article 3 of the European Convention, a point noted
by the European Court recently in a case similar to the present one. 7
4.8
The State party is aware that the conditions in Bulgarian detention centres have, in
some cases, been judged degrading. The European Court highlighted, in a pilot judgment, a
structural problem within the Bulgarian prison system, notably on account of overcrowding
and a lack of privacy and personal dignity when inmates went to the toilet. 8 In addition, the
State Secretariat for Migration and the Federal Administrative Court did not dispute, in
their decisions, the fact of the complainant’s detention or the insalubrious conditions
6
7
8
GE.18-04727
See general comment No. 1, para. 1; see also S.V. et al. v. Canada (communication No. 49/1996),
para. 9.8.
Letter dated 2 February 2016 from the European Court of Human Rights, annex 3.
European Court of Human Rights, Neshkov and Others v. Bulgaria, Nos. 36925/10 and five others, 27
January 2015.
5