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

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