Decision; Subjects: SWITZERLAND, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.24-14829 (E) 170924 170924
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1095/2021*, **
Communication submitted by:
M.N. (represented by AsyLex)
Alleged victim:
The complainant
State party:
Switzerland
Date of complaint:
10 October 2021 (initial submission)
Document references:
Decision taken pursuant to rules 114 and 115 of
the Committee’s rules of procedure, transmitted
to the State party on 13 October 2021 (not issued
in document form)
Date of adoption of decision:
18 July 2024
Subject matter:
Deportation to Romania under Regulation (EU)
No. 604/2013 of the European Parliament and of
the Council of 26 June 2013 (the Dublin III
Regulation); summary removal (chain
refoulement) to Afghanistan
Procedural issues:
Admissibility – exhaustion of domestic
remedies; admissibility – manifestly ill-founded
Substantive issues:
Cruel, inhuman or degrading treatment or
punishment; health; risk to life or risk of torture
or other cruel, inhuman or degrading treatment or
punishment, if deported to country of origin
(non-refoulement); refugee status; rehabilitation
Articles of the Convention:
3, 12, 14 and 16
1.1
The complainant is M.N., a national of Afghanistan born in 1993. He claims that, by
removing him to Romania, the State party would violate his rights under articles 3, 12, 14
and 16 of the Convention. The State party has made the declaration pursuant to article 22 (1)
of the Convention, effective from 1 January 1987. The complainant is represented by counsel.
1.2
On 13 October 2021, the Committee, acting through its Rapporteur on new complaints
and interim measures, issued a request for interim measures under rule 114 of the
* Adopted by the Committee at its eightieth session (8–26 July 2024).
** The following members of the Committee participated in the examination of the communication: Todd
Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen, Maeda
Naoko, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov. Pursuant to rule 109, read in
conjunction with rule 15, of the Committee’s rules of procedure, and paragraph 10 of the guidelines on
the independence and impartiality of members of the human rights treaty bodies (the Addis Ababa
guidelines), Ana Racu did not participate in the examination of the communication.
United Nations
CAT/C/80/D/1095/2021
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
18 September 2024
Original: English
CAT/C/80/D/1095/2021
2
GE.24-14829
Committee’s rules of procedure, requesting the State party to suspend the removal of the
complainant to Romania while the communication was pending before the Committee. The
State party informed the Committee that it had complied with the request.
Factual background
2.1
On an unknown date, the complainant left Afghanistan because his brother had been
killed by the Taliban. In October or November 2020, the complainant made four unsuccessful
attempts to enter Romania from Serbia, but he was subjected to pushbacks by the Romanian
police. He was beaten and threatened by police officers, who took and burned his belongings
and documents. On his fifth attempt to enter Romania, the complainant was taken to a police
station, and his fingerprints were taken. He was then placed in a crowded asylum camp, where
he received one meal per day and had no access to toilets and no ability to wash himself. For
these reasons, he left the camp and lived in an abandoned house with 200 other asylum-
seekers. After four or five days, police officers came and took around 80 persons to the police
station to take their fingerprints again. About five of these persons – including the
complainant – were taken to a room and severely beaten. The complainant attempted to
protect his face with his hands, in the process of which his wrists were broken. After that
incident, he was brought back to Serbia, where he stayed for around three months. He then
used a smuggler to go to Austria, where his fingerprints were taken once again.
2.2
The complainant arrived in Switzerland on 16 April 2021 and applied for asylum on
18 April 2021. On 20 May 2021, he had a preliminary interview with the State Secretariat
for Migration to establish his personal details and, on 26 May 2021, he had a hearing
regarding his transfer to Austria or to Romania under Regulation (EU) No. 604/2013 of the
European Parliament and of the Council of 26 June 2013 (the Dublin III Regulation).1 On 21
June 2021, the State Secretariat requested the Romanian authorities to readmit the
complainant under the Dublin III Regulation. On 5 July 2021, Romania accepted the request,
informing the State party’s authorities that the complainant had made an asylum application
on 31 December 2020 but that his file had been closed on 15 February 2021 after he had left
the accommodation allocated to him on 9 January 2021.2
2.3
On 13 July 2021, the State Secretariat for Migration rejected the complainant’s asylum
application under the Dublin III Regulation. It noted that the complainant had submitted an
asylum application in Romania on 31 December 2020 and considered that there were no
substantial grounds for assuming that, pursuant to article 3 (2) of the Dublin III Regulation,
asylum procedures and reception conditions for asylum-seekers in Romania showed
deficiencies that would expose the complainant to a risk of inhuman or degrading treatment
in that country. It also noted that there were no systemic deficiencies in the asylum and
reception system of Romania. As to his allegations that he had suffered ill-treatment in
Romania, the State Secretariat noted that Romania had a functioning judicial system; hence,
the complainant could file a complaint with the competent authorities concerning the alleged
police violence.
2.4
The complainant appealed, invoking health problems, namely, haemorrhoids and a
neck cyst, which was later diagnosed as a thyroid nodule. He produced four medical reports
and a report by the Swiss Refugee Agency, dated 22 February 2021, on the situation of
asylum-seekers and persons with protection status in Romania.
2.5
On 26 July 2021, the Federal Administrative Court suspended the execution of the
transfer with immediate effect. However, on 29 July 2021, it rejected the complainant’s
appeal, noting that, even though reports cited by the complainant showed that aspects of the
situation of asylum-seekers and migrants in Romania were problematic, it could not assume
that the shortcomings were such as to suggest that Romania was fundamentally unwilling or
unable to grant beneficiaries of protection the rights and benefits to which they were entitled.
1 Regulation (EU) No. 604/2013 (the Dublin III Regulation) establishes the criteria and mechanisms for
determining the member State responsible for examining an application for international protection
lodged in one of the member States by a third country national or a stateless person.
2 The Romanian authorities mentioned that, on 3 February 2021, they had accepted a transfer request
from Slovakia, but they had then been informed that the complainant had absconded. On 16 June 2021,
the Romanian authorities had also accepted a transfer request from Austria.
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3
It reasoned that neither the Federal Administrative Court, nor the European Court of Human
Rights, nor the Court of Justice of the European Union had found systemic weaknesses in the
asylum system in Romania, and that there were no concrete indications that Romania would
disregard the principle of non-refoulement and force the complainant to leave for a country
where his life, limb or freedom would be endangered.
2.6
The Federal Administrative Court considered that the complainant had not provided
any concrete evidence to indicate that Romania would deprive him of the minimum living
conditions to which he was entitled under Directive 2013/33/EU of the European Parliament
and of the Council of 26 June 2013, which lays down standards for the reception of applicants
for international protection. The Federal Administrative Court also noted that, on the
occasion of the hearing of 26 May 2021, the complainant had stated that he was in good
health. The Court considered that his health problems were not of such severity that his
transfer to Romania was precluded for humanitarian reasons and that there was no evidence
that Romania would deny him adequate medical treatment. Lastly, it noted that the State
party’s authorities in charge of the transfer would take into account any special medical needs
when determining the specific modalities of the transfer of the complainant and inform the
Romanian authorities in advance.
2.7
On 16 September 2021, the complainant filed a request for reconsideration with the
State Secretariat for Migration, based on new circumstances: following his medical
examination on 13 September 2021, it had been determined that both of his hands had been
broken and had not healed correctly. The complainant indicated that, although he had already
stated on several occasions that his hands had been broken by police officers in Romania and
that he had been beaten, tortured and tormented by them on several occasions, the doctor’s
report on the 13 September 2021 examination now provided tangible evidence that his hands
had indeed been broken. He also sought a suspension of the deportation order and legal aid.
2.8
By interlocutory decision of 17 September 2021, the State Secretariat for Migration
rejected the complainant’s request for a suspension, noting in particular that both it and the
Federal Administrative Court had already dealt with the allegation that his wrists had been
broken. The complainant challenged this decision before the Federal Administrative Court,
which temporarily suspended the execution of the removal on 21 September 2021 before
dismissing his appeal on 24 September 2021. By interlocutory decision of 22 September 2021,
the State Secretariat rejected the request for legal aid on the ground that the request for re-
examination had no chance of success and set the procedural fees at 600 Swiss francs. The
State Secretariat noted in particular that the medical report did not establish the cause or
origin of the hand fractures. A new application for legal aid was rejected by the State
Secretariat on 4 October 2021. On 14 October 2021, the State Secretariat dismissed the
complainant’s request for re-examination for non-payment of the applicable procedural fees.
2.9
On 12 November 2021, the complainant submitted a new request for re-examination,
which was again dismissed by the State Secretariat for Migration for non-payment of the
applicable procedural fees.
Complaint
3.1
The complainant claims that he is a highly vulnerable victim of torture and that, by
removing him to Romania, the State party would violate his rights under articles 3, 12, 14
and 16 of the Convention.
3.2
He alleges that Romania treats asylum-seekers in a degrading or inhuman way, that it
has the worst health-care system of any State member of the European Union because it
spends less than any other on its medical system and that it is therefore clearly not able to
provide appropriate health care for asylum-seekers. The complainant’s removal to Romania,
where he has no access to appropriate housing or mental health, medical, legal or social
support, and where he would be exposed to a serious and real risk of further torture or
inhuman or degrading treatment, without any State protection, would amount to torture and
ill-treatment. The complainant also argues that, in Romania, he would face a risk of removal
to his home country, Afghanistan, as his asylum request in Romania would have stopped
being processed when he had left the country. In Afghanistan, he has also previously
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experienced torture, and he would face torture or inhuman or degrading treatment again upon
his return.3
3.3
The complainant recalls that he declared on several occasions, before the State party’s
authorities, that he had been severely beaten by the Romanian police and that his wrists had
been broken. This makes the risk of being tortured again in Romania personal and present.
As a consequence, the burden of proof is reversed, and it is for the State party’s authorities
to obtain specific guarantees that he will not be tortured in Romania again. However, the
State party’s authorities have not provided evidence that they have met this burden; rather,
they have relied on general statements as to the situation of the judicial system in Romania.
State party’s observations on admissibility and the merits
4.1
In its observations of 13 April 2022, the State party contends that the complainant’s
claim under article 12 of the Convention is inadmissible ratione materiae because he does
not invoke acts of torture perpetrated in Switzerland.
4.2
The State party submits that, according to a medical report of 13 September 2021, the
complainant suffers from pain in both hands when pressure is applied and when he is cold.
After carrying out an X-ray, the doctor found one correctly healed fracture on the right side
and another, with a slight misalignment, on the left. The State party therefore considers that
the complainant did not establish a causal link between his fractures and the alleged ill-
treatment.
4.3
The State party notes that, upon return to Romania, the complainant would be in a
different situation from those facing a risk of pushback at the border. It states that the State
Secretariat for Migration would inform the authorities in Romania in advance of the transfer
of the complainant, in accordance with the procedure under the Dublin III Regulation, that
the entry of the complainant to Romania would be legal and that there is nothing to indicate
that the complainant would be subjected to treatment contrary to the Convention after his
arrival in Romania. It states that there is no indication that, in the event of transfer, the
complainant would risk being exposed to acts of torture or ill-treatment in Romania, that it is
not aware of any information according to which persons transferred to Romania within the
framework of cooperation under the Dublin III Regulation have been subjected to treatment
contrary to the Convention, that such a risk cannot be deduced from either the documents
cited by the complainant or the practice of international supervisory bodies, in particular the
European Court of Human Rights and the Court of Justice of the European Union, and that
the complainant does not provide any evidence that he would personally be at risk of ill-
treatment in the event of transfer.
4.4
The State party notes that the complainant’s state of health cannot be considered as
being particularly serious. It observes that, during his interview on 26 May 2021, the
complainant stated that he was in good health. When asked by his representative how he was
feeling emotionally, he repeated that he was fine. However, he declared that he tended to
forget things from time to time, due to the fact that he was often preoccupied. He had received
emotional support, which had helped him to feel better. For that reason, he had not gone to
see a doctor. The State party notes that it was only after the dismissal of his appeal against
the decision of the State Secretariat for Migration of 13 July 2021 that the complainant, in
the two applications for reconsideration that he filed, pointed out that he had health problems:
in addition to the pain in his hands, caused by the fractures that he had sustained, he suffered
from haemorrhoids and thyroid nodules, without swollen lymph nodes. He was prescribed a
cream to treat haemorrhoids and a cream to relieve the pain in his hands.
4.5
The State party submits that, in his second request for reconsideration, the
complainant relied on a virtual assessment made by a representative of a non-governmental
organization (NGO), according to which he showed signs of severe depression, anxiety and
loneliness. As the State Secretariat for Migration pointed out in its decision of 18 November
2021, it is not clear from the document in question to what extent the medical qualifications
of the person who drew it up are officially recognized or when the virtual assessment took
place. In addition, the complainant did not indicate why, despite having been in Switzerland
3 No further details were provided.
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5
for seven months, he had not sought psychological or psychiatric support from a doctor
established in the country, given that he claimed to be suffering from psychological problems.
Complainant’s comments on the State party’s observations on admissibility and the
merits
5.1
In his comments of 18 July 2023, the complainant argues that his claim under article
12 of the Convention should not be declared inadmissible. With respect to the merits, he
reiterates his arguments that the State party relied upon general assertions and failed to
provide evidence that, whatever its obligations under international and national law, Romania
respected the right of asylum-seekers to have access to material reception conditions in
practice. For example, in a recent report, a non-governmental organization in Serbia identifies
cases in which asylum-seekers were deported from numerous States members of the
European Union to Romania under the Dublin III Regulation and were then removed to
Serbia without being accorded access to the asylum procedure.4 In the complainant’s view,
although such removals are not technically pushbacks, because they do not happen at the
border, the result is the same: victims are similarly subject to violence and demeaning
treatment and, after being forcibly removed to Serbia, are again denied access to material
reception conditions and to an appropriate asylum procedure. In a recent report, the Border
Violence Monitoring Network describes allegations of the use of torture and ill-treatment in
the majority of pushback operations conducted by Romania at its borders.5
5.2
According to the complainant, it is noted in the 2020, 2021 and 2022 reports on
Romania in the Asylum Information Database that subsequent asylum-seekers do not have
the right to material reception conditions.6 This means that the complainant would lose all
entitlement to support, putting him in an extraordinarily vulnerable position upon return and
resulting in further deterioration of his health, thus amounting to ill-treatment. Although
asylum-seekers in theory have the right to be accommodated in reception centres as soon as
they have expressed their intention to apply for asylum, this is not the case in practice.7 The
complainant would most likely not have access to the labour market.
5.3
Insofar as the State party argues that the complainant should have lodged a complaint
with the Romanian authorities for failure to investigate his torture claims, the complainant
contends that it would be unreasonable to require him to complain to the very police
authorities that had subjected him to torture and ill-treatment.
5.4
Lastly, the complainant notes that it is not clear why the fact that he had felt healthy
at an earlier time would render not credible his claim that his health has deteriorated, as
communicated to the State party’s authorities and confirmed in numerous medical reports.8
His health status has changed significantly from the moment of the submission of his
communication to the Committee and differs significantly from the description provided by
the State party in its observations. The complainant has been diagnosed with thyroid cancer,
which led to the removal of his thyroid in January 2022. He will thus be dependent for the
remainder of his life on pills that contain the hormone that is usually produced by the thyroid.
Moreover, due to the specific mutation that caused his tumour, he is dependent on meticulous
follow-up care to monitor the risk of his cancer recurring. He suffers from epididymitis and
a hand fracture. His psychological health status is particularly serious, leaving him extremely
distressed. As stated in medical reports, he has suffered severe depressive episodes, including
suicidal thoughts and the loss of any hope. According to his doctor, the slight psychological
stabilization that he gained through therapy in Switzerland would be lost upon return to
Romania, and the doctor doubts the availability of the necessary treatment in Romania.
4 KlikAktiv, “Formalizing pushbacks: the use of readmission agreements in pushback operations at the
Serbian-Romanian border”.
5 Border Violence Monitoring Network, “Written input for the 69th session of the Committee on
Economic, Social and Cultural Rights”.
6 Asylum Information Database, Country Report: Romania, 2020 Update, p. 94; Country Report:
Romania, 2021 Update, p. 100; and Country Report: Romania, 2022 Update, p. 88.
7 Country Report: Romania, 2022 Update, pp. 88 ff.
8 Several medical reports are attached to the complainant’s comments.
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State party’s additional observations on admissibility and the merits
6.1
In its submission of 20 September 2023, the State party informs the Committee that,
on 1 August 2022, the complainant requested the re-examination of his asylum request on
the basis of new medical reports. On 10 October 2022, the State Secretariat for Migration
dismissed his request and, on 13 February 2023, the Federal Administrative Court rejected
his appeal.
6.2
The State party notes that Romania has not sent Afghan citizens back to Afghanistan
since the Taliban took power in late 2021. Romania is therefore complying with its legal
obligations, in particular by offering effective protection against refoulement and by not
sending people back to regions in crisis. The complainant’s fear of being returned to
Afghanistan after his return to Romania is therefore unfounded.
6.3
In April 2023, the unit in Romania responsible for the application of the Dublin III
Regulation confirmed in writing to the State party – following a request by the State
Secretariat for Migration – that access to the asylum procedure was guaranteed to any person
on Romanian territory, at the country’s border, as soon as he or she made an oral or written
request for protection. The Romanian authorities also emphasized in their response that all
foreign nationals had access to the asylum procedure, regardless of their status and the
manner in which they had entered or re-entered Romania. Access to a new asylum procedure,
in particular after a transfer under the Dublin III Regulation, was also guaranteed.
6.4
With regard to access to benefits, the State party notes that Romanian asylum
legislation provides that persons who lodge a subsequent asylum application are not entitled
to the assistance provided for asylum-seekers.9 However, the State party clarifies that this
provision is not compatible with article 20 of Directive 2013/33/EU of the European
Parliament and of the Council of 26 June 2013. According to the Directive, States may limit
or, in exceptional and duly justified cases, withdraw the benefit of material reception
conditions (para. 1). Decisions must be taken on a case-by-case basis and be duly
substantiated. States are in all circumstances to ensure access to medical care and a dignified
standard of living for all applicants (para. 5). Consequently, should the complainant be denied
access to material reception conditions by the Romanian authorities, he could rely on that
provision, which takes precedence over domestic law, to assert his rights. Independently of
his access to material reception conditions, the complainant could benefit from the support
of NGOs. The State party also points out that, according to information provided by the
Federal Foreign Office of Germany, the asylum procedure for persons returned to Romania
within the framework of the Dublin III Regulation complied with the standards of relevant
European law, and the Office was not aware of any cases of persons having found themselves
without accommodation in an involuntary manner.10
6.5
As to the complainant’s state of health, the State party recalls that, as attested by its
authorities, the hormones that the complainant needs and the checks that must be carried out
are readily available, and his needs for psychological treatment can readily be met, in
Romania. The State party also reiterates that its authorities will take into account the
complainant’s state of health when organizing the transfer, by sending the Romanian
authorities all relevant information in advance.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any claim submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
9 Country Report: Romania, 2020 Update, p. 94.
10 See Administrative Court of Sigmaringen, Germany, Case No. A 13 K 183/19, Decision, 19 February
2021.
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7.2
In accordance with article 22 (5) (b) of the Convention, the Committee shall not
consider any communication from an individual unless it has ascertained that the individual
has exhausted all available domestic remedies. The Committee notes that, in the present case,
the State party has not challenged the admissibility of the complaint on these grounds.
7.3
The Committee notes the State party’s allegation that the claim under article 12 of the
Convention should be declared inadmissible ratione materiae. The Committee notes,
however, that the obligation to investigate under article 12 applies to a State party when there
is a reason to believe that an act of torture or ill-treatment has been committed “in any
territory under its jurisdiction”. Thus, that article does not itself establish an obligation for
the State party to investigate such acts where they are alleged to have been committed on
Romanian territory. The Committee therefore considers that it is precluded, ratione loci, from
examining the complainant’s allegations under article 12 in respect of acts committed outside
the State party’s jurisdiction.
7.4
The Committee considers that the complainant has not shown that the facts, as
presented by him, raise separate issues under articles 14 and 16 of the Convention.11 In the
absence of further explanations, the Committee considers that that aspect of the
communication is insufficiently substantiated.
7.5
However, the Committee is of the view that, for the purposes of admissibility, the
complainant has provided sufficient information regarding the risk of being subjected to
torture that he would face if he were returned to Romania. It therefore considers his claim
under article 3 of the Convention to be admissible and proceeds with its consideration of the
merits.
Consideration of the merits
8.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 22 (4) of the Convention.
8.2
The Committee recalls, at the outset, that the Dublin III Regulation is based on the
principle that an asylum application is to be examined by the authorities of the State that
received the first asylum application (the application is examined by a single State). However,
article 3 (2) of the Regulation states that it may be impossible to transfer an applicant for
asylum to the State primarily designated as responsible because there are substantial grounds
for believing that there are systemic flaws in the asylum procedure and in the reception
conditions for applicants in that State, resulting in a risk of inhuman or degrading treatment.
In the light of these provisions and article 3 of the Convention, the Committee notes that the
scope for the exercise of States’ discretion in the context of the application of the Dublin III
Regulation demands an individual examination of each situation, in order to prevent a
situation where a transfer would expose the person concerned to a real and serious risk of
cruel, inhuman or degrading treatment or punishment or acts of torture. A similar
interpretation has been adopted by several human rights bodies. Thus, the Human Rights
Committee, in Jasin v. Denmark, concluded that an individual decision taken within the
framework of the Dublin process could violate the complainants’ rights under article 7 of the
International Covenant on Civil and Political Rights.12 The Committee also draws attention
to the jurisprudence of the European Court of Human Rights, which, in its judgment of
21 January 2011 in M.S.S. v. Belgium and Greece, concluded that a decision concerning
expulsion adopted pursuant to Council Regulation (EC) No. 343/2003 of 18 February 2003
(Dublin II Regulation) constituted a violation of article 3 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (European Convention on Human Rights).
Accordingly, the Committee is responsible for examining claims that such decisions by
national authorities violate article 3 of the Convention.13
8.3
In the present case, the Committee must therefore determine, taking into account the
factors set out above, whether the complainant’s transfer to Romania would constitute a
11 Harun
v.
Switzerland
(CAT/C/65/D/758/2016),
para.
8.7;
and
N.A.
v.
Switzerland
(CAT/C/79/D/1096/2021), para. 8.3.
12 Human Rights Committee, Jasin et al. v. Denmark (CCPR/C/114/D/2360/2014), para. 8.9.
13 Harun v. Switzerland, para. 9.2.
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violation of the State party’s obligation under article 3 of the Convention not to expel or to
return a person to another State where there are substantial grounds for believing that the
person would be in danger of being subjected to torture.
8.4
The Committee must evaluate whether there are substantial grounds for believing that
the complainant would be personally in danger of being subjected to torture upon return to
Romania. In assessing this risk, the Committee must take into account all relevant
considerations, pursuant to article 3 (2) of the Convention, including the existence of a
consistent pattern of gross, flagrant or mass violations of human rights.
8.5
The Committee recalls its general comment No. 4 (2017) on the implementation of
article 3 in the context of article 22, according to which the non-refoulement obligation exists
whenever there are “substantial grounds” for believing that the person concerned would be
in danger of being subjected to torture in a State to which he or she is facing deportation,
either as an individual or as a member of a group that may be at risk of being tortured in the
State of destination. The Committee’s practice has been to determine that “substantial
grounds” exist whenever the risk of torture is “foreseeable, personal, present and real”
(para. 11). It also recalls that the burden of proof is upon the author of the communication,
who must present an arguable case, that is to say, submit substantiated arguments showing
that the danger of being subjected to torture is foreseeable, present, personal and real.
However, when complainants are in a situation where they cannot elaborate on their case, the
burden of proof is reversed and the State party concerned must investigate the allegations and
verify the information on which the communication is based (para. 38). The Committee also
recalls that it gives considerable weight to findings of fact made by organs of the State party
concerned; however, it is not bound by such findings and will make a free assessment of the
information available to it in accordance with article 22 (4) of the Convention, taking into
account all the circumstances relevant to each case (para. 50).
8.6
The Committee also recalls that, before examining the question of non-refoulement,
States parties should consider whether the nature of the other forms of ill-treatment that a
person facing deportation is at risk of experiencing might change so as to constitute torture.14
Severe pain or suffering cannot always be assessed objectively in this context. It depends on
the negative physical and/or mental repercussions that the infliction of violent or abusive acts
has on the individual concerned, taking into account all relevant circumstances of each case,
including the nature of the treatment, the sex, age, state of health and vulnerability of the
victim and any other status or factors.15
8.7
The complainant asserts that, after entering Romania, he was beaten by police officers.
The Committee recalls its serious concern regarding allegations of ill-treatment during
migrant pushback operations in Romania16 and notes the allegations in the reports cited by
the complainant regarding pushback operations at the border between Romania and Serbia.17
The Committee recalls that the occurrence of human rights violations in a country is not, of
itself, sufficient for it to conclude that a complainant would personally be at risk of being
tortured if deported there.
8.8
The Committee notes the evidence provided by the complainant in support of his
allegations of torture and ill-treatment by the Romanian police, that is, medical reports
attesting that his wrists had been broken in the past. The Committee further notes that,
although the reports do not prove that the wounds that he documents were caused by the
abuse that he alleges, the complainant has not provided any alternative evidence to support
his allegations.
8.9
Nevertheless, the Committee notes that, even assuming that the complainant had
previously been abused in the manner that he alleges, the relevant question would remain
14 General comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of
article 22, paras. 16 and 28.
15 Ibid., para. 17.
16 CAT/C/ROU/CO/3, para. 23.
17 F v. Switzerland (CAT/C/78/D/1085/2021), para. 7.4.
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whether the complainant would currently run a risk of torture upon transfer to Romania.18
Similarly, the Committee also notes the complainant’s allegation that, if transferred to
Romania, he would not have access to an adequate and fair asylum procedure in that country
and would risk chain refoulement to Afghanistan. In this regard, it notes the State party’s
submission that the complainant’s presence in Romania would be lawful if he were
transferred under the Dublin III Regulation. While taking note of the reports pointing to
failures in the Romanian asylum process, the Committee considers that those reports do not
support the complainant’s claim that the State party would violate his rights under the
Convention by subjecting him to torture or to a risk of summary removal to a country where
he could face a real, present, personal and foreseeable risk of being tortured. There are also
no concrete elements in the case file to indicate that the complainant would face a risk of
transfer from Romania to Afghanistan.19
8.10
With respect to the question of whether the complainant would benefit from adequate
conditions of reception in Romania, the Committee notes that, according to a report in the
Asylum Information Database that was cited by the complainant, material reception
conditions are available to (and are not reduced for) individuals who are transferred to
Romania under the Dublin procedure.20
8.11
The complainant also claims that his state of health precludes his removal to Romania,
where he would not have access to adequate medical care. The Committee notes that the
complainant does not allege that he sought medical care or was refused medical care in
Romania. According to a report, dated April 2023, by the General Inspectorate for
Immigration in Romania, following a transfer under the Dublin III Regulation, asylum
applicants can access free primary health care and emergency hospital aid, as well as medical
assistance and free treatment in cases of acute and chronic illnesses,21 and the authorities
conduct an assessment to identify vulnerable persons, such as those with mental illnesses and
persons who have been subjected to serious forms of violence.22 The Committee notes the
State party’s claim that, when transferring a person under the Dublin III Regulation, the State
Secretariat for Migration executes the transfer only if the person is fit to travel and that the
authorities in the receiving State are informed in advance of the state of health of the person
and of the medical treatment that he or she needs. The Committee therefore considers that
the complainant has not demonstrated that his state of mental health and the level of medical
care in Romania would place him in real, personal, present and foreseeable danger of being
subjected to torture upon transfer to Romania.
8.12
Lastly, the Committee notes that the complainant had ample opportunity to provide
the State Secretariat for Migration and the Federal Administrative Court with supporting
evidence and more information about his claims. The evidence that has been provided,
however, does not make it possible to conclude that his deportation to Romania under the
Dublin III Regulation would put him at risk of torture.
9.
On the basis of the above, and in the light of the material before it, the Committee
considers that the complainant has not provided sufficient evidence to enable it to conclude
that his deportation to Romania would expose him to a real, foreseeable, personal and present
risk of being subjected to treatment contrary to article 3 of the Convention.
18 Among many others, M.F. v. Sweden (CAT/C/41/D/326/2007), para. 7.6; and Y v. Switzerland
(CAT/C/50/D/431/2010), para. 7.7.
19 N.A. v. Switzerland, para. 9.9.
20 F v. Switzerland, para. 7.7.
21 N.A. v. Switzerland, para. 9.10 and footnote 24.
22 European Union Agency for Asylum, “Information on procedural elements and rights of applicants
subject to a Dublin transfer to Romania”, para. 1.7. See also para. 1.6.
CAT/C/80/D/1095/2021
10
GE.24-14829
10.
The Committee, acting under article 22 (7) of the Convention, concludes that the
deportation of the complainant to Romania under the Dublin III Regulation would not
constitute a violation by the State party of article 3 of the Convention. While the Committee
does not make a finding of a violation, it requests the State party to inform Romania about
the complainant’s medical needs in order to facilitate the continuity of his medical treatment
upon his arrival in Romania.