opencaselaw.ch

CAT/C/82/D/1107/2021

M.H. v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 2025-04-11 · en CH

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.25-08061 (E) 010925 020925

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1107/2021*, **

Communication submitted by:

M.H. (represented by the Swiss Centre for the

Defence of the Rights of Migrants and then

Caritas)

Alleged victim:

The complainant

State Party:

Switzerland

Date of complaint:

29 November 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 2 December 2021 (not

issued in document form)

Date of adoption of decision:

11 April 2025

Subject matter:

Deportation to Croatia under Regulation (EU)

No. 604/2013 of the European Parliament and of

the Council of 26 June 2013 (the Dublin III

Regulation)

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, 14 and 16

1.1

The complainant is M.H., a national of Afghanistan born in 1998. He claims that, by

removing him to Croatia, the State Party would violate his rights under articles 3, 14 and 16

of the Convention. The State Party made the declaration provided for in article 22 (1) of the

Convention on 2 December 1986. The complainant is represented by counsel.

1.2

On 2 December 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 eighty-second session (7 April–2 May 2025).

** 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, Ana Racu and Abderrazak Rouwane.

United Nations

CAT/C/82/D/1107/2021

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

2 September 2025

Original: English

CAT/C/82/D/1107/2021

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Committee’s rules of procedure, requesting the State Party to suspend the removal of the

complainant to Croatia while the communication was pending before the Committee.

Factual background

2.1

On an unknown date, the complainant fled Afghanistan because one of his brothers

had been killed by the Taliban.1 He fled with his parents, his two other brothers and their

wives and children and his younger sister. They transited through the Islamic Republic of

Iran, Türkiye, Greece, Bosnia and Herzegovina, Croatia, Serbia, Slovenia and then Italy, and

eventually arrived in Switzerland, where the complainant applied for asylum on 25 October

2020.2

2.2

On 9 November 2020, the complainant had a preliminary interview with the State

Secretariat for Migration to establish his personal details. On 25 November 2020, the

complainant had a hearing regarding his transfer to Croatia under Regulation (EU)

No. 604/2013 of the European Parliament and of the Council of 26 June 2013 (the Dublin III

Regulation). 3 The State Secretariat noted that the complainant had requested asylum in

Greece, where he had stayed for some seven months, but had not received a decision. He had

then made some 15 or 16 attempts to enter Croatia from Bosnia and Herzegovina but was

pushed back. The complainant declared that he had stayed for some two months in Croatia

in a camp, but had not requested asylum. The Croatian authorities had allegedly taken his

belongings – including telephones and money, undressed him and beaten him and his

parents.4 The officials of the Croatian authorities had also placed the complainant and his

family in a car and driven them recklessly around the woods so that they felt sick and

vomited. Accommodation conditions had also been difficult because food had been scarce

and the family’s children had not received enough milk. The complainant claimed that he

had not been treated humanely by the staff at the accommodation centre because they had

looked at him derogatively and that he was considered as subhuman by the Croatian

population. As to his state of health, the complainant declared that he was doing well; he was

suffering from toothache but was being taken care of by a dentist.

2.3

On 25 November 2020, the State Secretariat for Migration requested the Croatian

authorities to readmit the complainant under the Dublin III Regulation. On 7 December 2020,

Croatia accepted the request, mentioning that the asylum procedure was still pending.

2.4

On 3 March 2021, the State Secretariat for Migration rejected the complainant’s

asylum application without examining his grounds for asylum. It noted that the complainant

had submitted an asylum application in Croatia on 29 August 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 Croatia

showed deficiencies that would expose the complainant to a risk of inhuman or degrading

treatment in that country. While noting various reports of violent pushbacks at the Croatian

border with Bosnia and Herzegovina, the State Secretariat also noted that pushbacks did not

concern the Dublin transfers to Croatia. That conclusion was supported by the Swiss Embassy

in Croatia, which had consulted with Croatian officials, international organizations (the

Office of the United Nations High Commissioner for Refugees (UNHCR) and the

International Organization for Migration), local non-governmental organizations (NGOs)

(Centre for Peace Studies and Are You Syrious?) and the Croatian Ombudsperson. The State

Secretariat noted that those consultations by the Swiss Embassy had found no systemic

deficiencies in the asylum and reception system of Croatia. As to his allegations that he had

suffered ill-treatment by the authorities in Croatia, the State Secretariat noted that Croatia

had a functioning judicial system; hence, the complainant could file a complaint with the

competent authorities.

1 The complainant provides no further details or evidence.

2 The other members of the complainant’s extended family also applied for asylum in Switzerland.

3 Regulation (EU) No. 604/2013 (the Dublin III Regulation) establishes the criteria and mechanisms for

determining the member State of the European Union responsible for examining an application for

international protection lodged in one of the member States by a third-country national or stateless

person.

4 The complainant provides no further details or evidence.

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2.5

The State Secretariat also noted that the investigation led by the Swiss Embassy in

Croatia had shown that persons who returned to Croatia under the Dublin III Regulation

would benefit from proper accommodation, social assistance and a work permit. The

complainant had not provided any specific evidence to indicate that Croatia 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 laying down standards for

the reception of applicants for international protection. Lastly, the State Secretariat noted that

the complainant had not produced any medical documentation in relation to his state of health

and it stated that he would be transferred to Croatia, together with his family.

2.6

The complainant appealed and, by an interlocutory decision of 11 March 2021, the

Federal Administrative Court suspended the execution of the transfer with immediate effect.

However, on 20 July 2021, it rejected the complainant’s appeal. It noted that the

complainant’s statements as to the ill-treatment suffered in Croatia were very general,

without any specific details as to the exact circumstances in which the facts had occurred,

which negatively affected his credibility. The Court considered that the simple fact of a

person in an irregular situation being searched or invited to undress partially during the arrest

does not constitute in itself ill-treatment. It also examined the statements of the complainant’s

sister in respect of the body searches, concluding that the Croatian authorities had taken all

precautions necessary during the body searches: the women had been searched by female

police officers and the men by male police officers; the searches had taken place in a room

set aside for that purpose; and the men had not been forced to strip completely, but allowed

to keep their shorts on.

2.7

The Federal Administrative Court noted that the complainant and his family had

attempted to enter Croatia illegally several times and had systematically refused to provide

their fingerprints, as requested under the Dublin III Regulation, so had been turned back at

the border. During their last attempt to enter Croatia, some family members had felt unwell

and had requested medical assistance from the Croatian authorities. It was therefore normal

that the Croatian authorities had urged them to provide their fingerprints and request asylum

so that they could benefit from the principle of non-refoulement and reception conditions

compliant with Directive 2013/33/EU, in particular medical care and accommodation. The

Court held that, because of their attitude, the complainant and his family had imposed on the

Croatian authorities the difficult task of rejecting several times at the border the

complainant’s family of 12 persons, including 7 adults who had not wanted to be refused

entry and had been determined to circumvent the Dublin III Regulation. While not wishing

to minimize the difficult conditions in which they had been turned back at the border, the

Court noted that the complainant had not declared at any point that the Croatian authorities

had turned him back at the border in order to prevent him from requesting asylum in Croatia.

2.8

The Federal Administrative Court also noted that the complainant’s claim that he had

not requested asylum in Croatia obviously did not reflect reality, because otherwise he would

not have benefited from accommodation in an asylum centre and the Croatian authorities

would not have accepted his return. Lastly, the Court noted that neither in his Dublin

interview nor in his appeal had the complainant invoked medical issues.

2.9

From 3 to 9 September 2021, the complainant was hospitalized for a depressive

episode with active suicidal ideations5 and, from 21 September to 14 October 2021, he was

hospitalized for a suicide attempt by defenestration after he had received a flight plan for his

transfer to Croatia.6 He was again hospitalized from 29 November to 9 December 2021 for a

second suicide attempt.

Complaint

3.1

The complainant claims that, by removing him to Croatia, the State Party would

violate his rights under articles 3, 14 and 16 of the Convention. He submits that the treatment

he suffered while in the custody of the Croatian police, in particular the beatings and

5 The complainant provides a medical report of 17 September 2021.

6 The complainant provides a medical report of 14 October 2021 showing that he was diagnosed with

post-traumatic stress disorder.

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humiliating strip searches, were specifically intended to intimidate, punish and deter him

from re-entering Croatian territory. Medical reports have established that such treatment has

left lasting psychological effects, requiring specialist follow-up in Switzerland. The

complainant considers that the treatment at the hands of the Croatian police amounted to

torture within the meaning of article 3 of the Convention or, at a minimum, ill-treatment in

violation of article 16.

3.2

The complainant points to available information on reception conditions in Croatia,

according to which there is no system for the identification of vulnerable asylum-seekers7 or

access to specialized medical follow-up for victims of trauma in the asylum centres.

Psychiatric support and psychosocial assistance are not available in practice.8 While the Act

on International and Temporary Protection of Croatia guarantees emergency medical

assistance and the treatment necessary for illnesses and serious mental health problems, the

full range of healthcare available to Croatian citizens, including timely diagnosis and

specialist care, is not accessible to asylum-seekers.9

3.3

The complainant therefore assumes that he will not benefit from the treatment he

needs in order to cope with the trauma of expulsion and the abrupt separation from his

medical doctors in Switzerland, with whom he has established a therapeutic bond. At the very

least, the above information gives rise to serious doubts as to his access to appropriate

medical care in Croatia.10 His expulsion is likely to cause him irreparable harm in violation

of articles 3, 14 and 16 of the Convention, because he will not have access to the medical

treatment that his Swiss doctors have confirmed to be essential to his mental health and

necessary in order to avoid the real risk of suicide.11

3.4

Lastly, the complainant invokes several reports on violent pushbacks by the Croatian

authorities.12

State Party’s observations on admissibility and the merits

4.1

On 1 June 2022, the State Party submitted its observations. It notes that the

complainant produced before the Committee two expert reports that had not been submitted

to the asylum authorities. It thus considers that the complainant has not exhausted all

domestic remedies, given that he could have requested the re-examination of his asylum

application based on new evidence.

7 Asylum Information Database, “Country report: Croatia. 2020 update” (2021), pp. 91 and 92. Available

at https://asylumineurope.org/wp-content/uploads/2021/05/AIDA-HR_2020update.pdf.

8 Ibid., pp. 86–90; see also Médecins du monde, “Everyone has the right to healthcare: a model of

healthcare mediation/support intended for asylum seekers in Croatia – outline, challenges and

recommendations” (2020), p. 14. Available at https://medecinsdumonde.be/system/files/publications/

downloads/MDM%20AMIF%204P%20Everyone%20has%20the%20right%20to%20healthcare%20-

%20ENG%20-%20July%202020%20-%20amended%20version_0.pdf.

9 Médecins du monde, “Everyone has the right to healthcare”, p. 14.

10 Harun v. Switzerland (CAT/C/65/D/758/2016), para. 9.9.

11 A.N. v. Switzerland (CAT/C/64/D/742/2016), para. 8.7.

12 Asylum Information Database, “Country report: Croatia. 2020 update”, pp. 23 and 24; Office of the

United Nations High Commissioner for Human Rights, “Croatia: Police brutality in migrant pushback

operations must be investigated and sanctioned – UN Special Rapporteurs”, 19 June 2020, available at

https://www.ohchr.org/en/news/2020/06/croatia-police-brutality-migrant-pushback-operations-must-

be-investigated-and; A/HRC/44/42/Add.2, paras. 64–68; Council of Europe Commissioner for Human

Rights, “Croatian authorities must stop pushbacks and border violence, and end impunity”, 21 October

2020,

available

at

https://www.coe.int/en/web/commissioner/-/croatian-authorities-must-stop-

pushbacks-and-border-violence-and-end-impunity; Council of Europe Commissioner for Human

Rights, third party intervention by the Council of Europe Commissioner for Human Rights under

Article 36, paragraph 3, of the European Convention on Human Rights, No. 18810/19, 18865/19 and

23495/19, S.B. v. Croatia, A.A. v. Croatia and A.B. v. Croatia, available at https://rm.coe.int/third-party-

intervention-before-the-european-court-of-human-rights-in-/1680a0ee5e;

and

Lorenzo

Tondo,

“Croatian police accused of ‘sickening’ assaults on migrants on Balkans trail”, The Guardian,

21 October 2020, and “Croatian border police accused of sexually assaulting Afghan migrant”, The

Guardian, 7 April 2021.

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4.2

On the merits, the State Party acknowledges the existence of the practice of

“pushbacks” by the Croatian authorities at the border with Bosnia and Herzegovina, but notes

that the information gathered by the State Secretariat for Migration has demonstrated that

those practices are limited to those wishing to avoid having their fingerprints taken and

entering the Schengen area illegally with the aim of making their way to the State of their

choice. The examination carried out by the Swiss authorities does not therefore make it

possible to determine that those practices concern persons transferred to Croatia under the

Dublin III Regulation or seeking asylum in Croatia. Furthermore, all persons transferred to

Croatia as part of a Dublin III procedure are without exception sent to Zagreb and are granted

access to an asylum procedure in accordance with the rule of law, including effective legal

remedies to contest a decision.

4.3

The State Party notes that the complainant’s allegations in respect of conditions of

accommodation in Croatia are general and lack any detail. It also notes that the complainant

and his family benefited from food, medical care and accommodation that included a shower

and toilets.

4.4

The State Party then notes that, while the medical report of 14 October 2021 mentions

that the complainant had suffered physical and sexual abuse while in Croatia, he never raised

allegations of sexual abuse in domestic proceedings. Moreover, the two medical reports do

not contain any detail as to the alleged violence. In any event, they have not been produced

for examination before the domestic authorities. 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 Croatian authorities all relevant information in advance.

Complainant’s comments on the State Party’s observations on admissibility and

the merits

5.1

In his comments of 12 and 21 October 2022 and 22 December 2022, the complainant

reiterates the facts and contests the decisions of the Swiss migration authorities. He then

submits that the State Party’s plea of failure to exhaust domestic remedies can be discarded,

because, on 22 September 2022, he had introduced a request for re-examination, which had

been denied by the State Secretariat for Migration on 11 October 2022. The State Secretariat

first recalled that a request for re-examination should be introduced within the legal deadline

of 30 days from the moment the complainant had discovered the reason for requesting

re-examination. It therefore discarded the medical reports of 10 and 17 September 2021,

14 October 2021 and 1 and 14 December 2021 and examined only a medical report dated

9 September 2022. It noted that the medical report mentioned that the complainant was

suffering from post-traumatic stress disorder and an episode of moderate depression,

currently in remission, and considered that the report was not conclusive evidence, because

the complainant’s state of health did not reach the threshold fixed by the European Court of

Human Rights to be considered an obstacle to deportation. It noted that the complainant was

showing improvement under treatment. It held that it had already examined during the

ordinary asylum procedure the possibility of the complainant accessing healthcare in Croatia.

5.2

As to the complainant’s allegations that he is a victim of torture, the State Secretariat

for Migration noted that, while the medical report mentioned psychological consequences

caused by past traumatic events, it did not contain any detail proving the alleged events.

Therefore, the State Secretariat considered that the complainant’s allegations of torture were

unsubstantiated. It also held that there were no elements in the medical report to indicate that

the complainant at that time needed care that could only be provided by his parents.

5.3

The complainant appealed. In an interlocutory decision of 15 November 2022, the

Federal Administrative Court upheld its decision to disregard the medical reports, with the

exception of the report dated 9 September 2022. It then noted that, in spite of the

complainant’s allegations, the State Secretariat for Migration had taken into account the

diagnosis mentioned in the medical report of 9 September 2022. On 8 December 2022, the

Federal Administrative Court declared the complainant’s appeal inadmissible because he had

not paid the procedural fees.

5.4

The complainant alleges that, although produced within the 30-day deadline, the

Federal Administrative Court did not mention in its decision the report of 9 September 2022

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that shows that he is heavily traumatized and requires medication and regular psychotherapy

sessions. According to the complainant, if the State Party had entertained any doubt as to his

status as a trauma victim, it should have arranged for an independent medical examination to

clarify that question. He considers that a sudden separation from his family would have

devastating consequences for his prognosis and impede his full rehabilitation, which is

ongoing and showing positive results. He reiterates the lack of access to proper medical

follow-up for asylum-seekers and refugees in Croatia.

5.5

The complainant points out that, in his appeal before the Federal Administrative

Court, he devoted an entire subsection to his right to rehabilitation under article 14 of the

Convention,13 but the Court completely ignored his arguments, which received no mention

at all in the interlocutory decision. For the complainant, the Swiss authorities: did not conduct

an individualized assessment of his application for re-examination because they carried out

only a cursory review of his claims and evidence; denied suspensive effect to the

re-examination proceedings; and denied him access to a judicial remedy by imposing

prohibitive costs on the proceedings as a condition for a merits review of the appeal, despite

his manifest poverty.14

5.6

Lastly, the complainant cites two reports of non-governmental organizations that, in

his view, contain information that corroborates his allegations of having been exposed to

physical and psychological violence in Croatia, as well as his argument that he would not

have access to the medical treatment necessary for his rehabilitation if he were expelled to

that country.15

Additional submissions by the parties

By the State Party

6.1

In its submission of 3 April 2023, the State Party informs the Committee that, on

22 March 2023, the Federal Administrative Court issued a landmark judgment16 regarding

Dublin transfers to Croatia. While noting the inhuman methods of pushback at the borders of

Croatia with Bosnia and Herzegovina and Serbia, the Court notes that complainants returned

under the Dublin III Regulation and whom Croatia had agreed to receive are in a different

situation from those facing a risk of pushback at the border and have full access to the asylum

procedure. The reports available currently and the majority of the case law consulted from

other States that implement the Dublin III Regulation, such as Austria, Belgium, France and

Germany, support that assessment. In particular, the information available does not allow the

State Party to conclude that there are reports or documented cases according to which persons

transferred under the Dublin III Regulation are deported illegally despite their declared

willingness to undergo the asylum procedure in Croatia.

6.2

In its submission of 11 May 2023, the State Party notes that, at the time of his

communication before the Committee, the complainant had not requested re-examination

based on new medical evidence. That ground of inadmissibility cannot be remedied

retrospectively, hence the communication must be declared inadmissible.

6.3

Insofar as the complainant alleges that the Swiss authorities violated the Convention

by rejecting his application for free legal aid, the State Party notes that the Federal

Administrative Court had rejected the request only after a prima facie examination of the case

file submitted by the complainant: the same with the rejection of the application for the

13 A copy of his appeal is on file.

14 B.T.M. v. Switzerland (CAT/C/75/D/972/2019), para. 8.7; M.G. v. Switzerland (CAT/C/65/D/811/2017

and CAT/C/65/D/811/2017/Corr.1), para. 6.4; and D.Z. v. Switzerland (CAT/C/71/D/790/2016),

paras. 2.4 and 11.

15 “Stop Dublin Croatieˮ open letter by various civil society actors in French-speaking Switzerland,

18 October 2022, available at https://asile.ch/wp-content/uploads/2022/10/StopDublinCroatie_

DossierPresse_HQ.pdf; and Solidarité sans frontières, “Les renvois Dublin vers la Croatie doivent

immédiatement

cesser”

(2022),

available

at

https://asile.ch/wp-content/uploads/2022/12/

221205_Bericht_Pushbacks_FRZ_Web.pdf.

16 Switzerland, Federal Administrative Court, Judgment No. E-1488/2020, 22 March 2023.

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suspensive effect. The State Party also notes that the State Secretariat for Migration explained

in detail the reasons why the application for re-examination should be rejected.

By the complainant

7.1

In his submission of 30 May 2023, the complainant submits that Croatia has given no

guarantee that his asylum application lodged there on 29 August 2020 is still pending and

that he will have access to a fair procedure equivalent to that in Switzerland. Croatia has not

provided any information about the stage that the consideration of his asylum application has

reached, merely agreeing to take him back. Given that his asylum application has been

pending for almost three years, there is a high risk that he will be deported to Afghanistan,

where he fears persecution from the Taliban. He explains that persons whose asylum

application has been rejected in their absence are under an obligation to leave the country

and may be placed in administrative detention pending deportation to their country of

origin.17 Lastly, he reports that he was hospitalized from 23 March to 6 April 2023 to prevent

him from making another suicide attempt.

7.2

On 5 November 2024, the complainant informed the Committee of another request

for re-examination that he had brought on 19 July 2023 and that had been denied by the State

Secretariat for Migration on 2 November 2023 because it was based on a medical report of

6 April 2023, which had been submitted after the legal deadline of 30 days from the moment

the complainant had discovered the reason for requesting re-examination. The complainant

considers that the State Party is entirely incorrect in maintaining that the Swiss authorities

did not have the opportunity to assess the medical evidence that had been presented to the

Committee because that evidence had in fact been provided to them in the context of the two

above-mentioned re-examination proceedings.

7.3

The complainant submits that the statistics mentioned in the 2023 country report on

Croatia produced by the Asylum Information Database concerning recognition rates for

Afghan asylum-seekers in Croatia support his argument that he would risk chain refoulement

to Afghanistan. In 2023, of 19,295 nationals of Afghanistan who applied for asylum, none

received protection in any form in Croatia in that year, despite them constituting by far the

largest national group of asylum-seekers.18

7.4

On 30 January 2025, the complainant explained that UNHCR had also used statistics

contained in the Asylum Information Database reports, which had been provided by the

Ministry of the Interior of Croatia. 19 He also explained that the number of Afghan

asylum-seekers registered in Croatia in 2023, as provided in the Asylum Information

Database report, included all Afghans who had submitted a claim. However, most of them

had left Croatia before a formal decision on their case was taken: those who had left were

therefore not reflected in the UNHCR figures. According to those figures, 296 cases of

Afghans had been closed in 2023 20 without any of them being recognized as

asylum-seekers.21

7.5

According to UNHCR statistics for 2018–2024, of a total of 4,084 formal decisions

taken by the Croatian authorities on the claims of nationals of Afghanistan, 55 such nationals

obtained refugee protection, while 114 requests were rejected. The remaining 3,915 requests

were “otherwise closed”.22 The complainant explains that those figures include nationals of

Afghanistan who were reintegrated into an asylum procedure following a Dublin transfer

back to Croatia. Given the absence of a formal decision, the UNHCR statistics do not include

nationals of Afghanistan who were registered as asylum-seekers in Croatia but later moved

onwards to other countries before the proceedings were concluded. However, for the

17 Are You Syrious?, “Dublin returnees – legal and practical obstacles in Croatia”, 24 April 2023.

Available

at

https://sosf.ch/archive/cms/upload/230424_AYS_Dublin_returnees_-

_legal_and_practical_obstacles_in_Croatia.pdf.

18 Asylum

Information

Database,

“Country

report:

Croatia.

2023

update”.

Available

at

https://asylumineurope.org/wp-content/uploads/2024/07/AIDA-HR_2023-Update.pdf.

19 The complainant provided a copy of an email exchange with a representative of UNHCR in Croatia.

20 The complainant makes no mention of the reason for closing those cases.

21 See https://www.unhcr.org/refugee-statistics/download.

22 The complainant does not provide an explanation of the reasons.

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complainant, the low recognition rate is entirely inconsistent with the protection needs of

refugees from Afghanistan.

By the State Party

8.1

In its submissions of 17 January 2025, the State Party mentions that it is not possible

to provide statistics as to the outcome of the requests for asylum of Afghan nationals

transferred to Croatia under the Dublin III Regulation. It refers to data of Eurostat to note

that, between 2014 and 2023, almost 90 per cent of the requests for asylum were closed

without any further action. In other words, those requests for asylum had not been examined

on the merits. The State Party highlights that, where a decision on the merits had been

delivered by the Croatian authorities between 2014 and 2023, it was positive in around

20 per cent of cases. 23

8.2

The State Party submits that, in the case of asylum-seekers who have not received a

positive decision, it cannot be inferred that a removal to Afghanistan has been carried out. It

refers to the Asylum Information Database statistics provided by the complainant to note that

suspension of enforcement, waiver of removal or other residency regulations remain in force.

It then invokes Eurostat statistics for 2022–2024 to note that no Afghan national has been

returned to Afghanistan in recent years by the Croatian authorities.24

8.3

The State Party informs the Committee that, according to research by the State

Secretariat for Migration, the high number of closed asylum applications is explained by the

fact that Croatia is only a transit country for a large proportion of asylum-seekers. A

significant proportion of asylum-seekers clearly have no interest in pursuing an asylum

application in Croatia. As a result, most of them leave Croatia before an asylum procedure is

opened and head for Northern and Western Europe. In that context, the State Party notes the

conclusion of the 2023 Asylum Information Database report, according to which many

asylum-seekers withdraw their application as soon as they realize that a procedure has been

opened in Croatia or leave the country before the end of the procedure, which is why the

majority of asylum applications cannot be the subject of a decision on the merits.25

8.4

The State Party further notes that, according to the 2023 Asylum Information

Database report provided by the complainant, applicants who are returned under the Dublin

III Regulation in principle do not face any obstacles in accessing the procedure for granting

international protection in Croatia.26 The Swiss Embassy in Croatia also clarified repeatedly

that the asylum-seekers returned under the Dublin III Regulation to Croatia have access to

asylum proceedings following their transfer. If they express the intention to seek international

protection, they are considered to be asylum-seekers and are accommodated in a centre for

asylum-seekers, where they can submit a formal application. Moreover, the Swiss Federal

Administrative Court has also found that asylum-seekers or other persons transferred to

Croatia on the basis of the Dublin III Regulation have access to the asylum procedure in that

country, regardless of whether they have previously applied for asylum there or not.27

Issues and proceedings before the Committee

Consideration of admissibility

9.1

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

23 Eurostat, “First instance decisions on applications by type of decision, citizenship, age and sex – annual

aggregated data”, available at https://ec.europa.eu/eurostat/databrowser/view/migr_asydcfsta__

custom_15050767/default/table; and “Final decisions in appeal or review on applications by type of

decision, citizenship, age and sex – annual data”, available at https://ec.europa.eu/eurostat/

databrowser/view/migr_asydcfina__custom_15050959/default/table.

24 Eurostat, “Third-country nationals returned following an order to leave, by type of return, citizenship,

country

of

destination,

age

and

sex

–

quarterly

data”,

available

at

https://ec.europa.eu/eurostat/databrowser/view/migr_eirtn1__custom_15051778/default/table.

25 Asylum Information Database, “Country report: Croatia. 2023 update”, pp. 18, 39 and 97.

26 Ibid., p. 57.

27 Switzerland, Federal Administrative Court, Judgment No. E-1488/2020, 22 March 2023.

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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.

9.2

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 contested the exhaustion of all available domestic remedies by the

complainant because, at the moment of submitting his communication to the Committee, he

had not requested a re-examination of his case in order to allow the competent national

authorities to evaluate the medical reports that had been presented by the complainant in his

complaint to the Committee. However, the Committee notes that, after the State Party had

raised that plea of inadmissibility in its observations of 1 June 2022, the complainant

introduced the suggested request for re-examination on 22 September 2022. In the light of

this information, the Committee considers that the State Party’s plea of inadmissibility has

become moot.

9.3

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.28 In the

absence of further explanations, the Committee considers that that aspect of the

communication is not sufficiently substantiated.

9.4

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 Croatia. 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

10.1

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.

10.2

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 where there are

substantial grounds for believing that there are systemic flaws in the asylum procedure and

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.29

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,30

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).

10.3

In the present case, the Committee must therefore determine, taking into account the

factors set out above, whether the complainant’s transfer to Croatia would constitute a

violation of the State Party’s obligation under article 3 of the Convention against Torture 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.

28 Harun v. Switzerland, para. 8.7; and N.A. v. Switzerland (CAT/C/79/D/1096/2021), para. 8.3.

29 See also Human Rights Committee, Jasin et al. v. Denmark (CCPR/C/114/D/2360/2014), para. 8.9.

30 Application No. 30696/09.

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10.4

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

Croatia. In assessing that 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.

10.5

The Committee recalls its general comment No. 4 (2017), 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, 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 the

organs of the State Party concerned; however, it is not bound by such findings, as it can 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).

10.6

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

(paras. 16 and 28). 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 and state of

health and vulnerability of the victim and any other status or factors (para. 17).

10.7

The complainant asserts that, after entering Croatia, he was beaten by police officers.

The Committee notes the allegations of ill-treatment in the reports cited by the complainant

regarding pushback operations at the borders of Croatia with Bosnia and Herzegovina and

Serbia. 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 be personally at risk of

being tortured if deported there.

10.8

The Committee notes the evidence provided by the complainant in support of his

allegations of ill-treatment by the Croatian authorities, that is, medical reports attesting that

he suffers from post-traumatic stress disorder as a result of his past experiences. However,

the Committee notes that the medical reports do not prove that the psychological harm that

he experienced was caused by the abuse that he alleges. It further notes the complainant has

not provided, either to the Committee or the State Party’s authorities, any alternative evidence

to support his allegations of ill-treatment.

10.9

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

whether the complainant would currently run a risk of torture upon transfer to Croatia.31

Similarly, the Committee also notes the complainant’s allegation that, if transferred to

Croatia, he would not have access to an adequate and fair asylum procedure in that country

and would risk chain refoulement to Afghanistan. In that regard, it notes the State Party’s

submission that the complainant’s presence in Croatia would be lawful if he were transferred

under the Dublin III Regulation. While taking note of the reports pointing to failures in the

Croatian 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 a risk of summary removal to a country where he could face a

31 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.

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real, present, personal and foreseeable risk of being tortured. There are also no specific

elements in the case file to indicate that the complainant would face a risk of transfer from

Croatia to Afghanistan.32

10.10 In that connection, the Committee takes note of the statistics provided by the parties.

The Committee notes, however, that those statistics do not reflect precisely the situation of

the nationals of Afghanistan returned to Croatia under the Dublin III Regulation. The

Committee also notes that, according to the statistics provided, since 2022, no Afghan

national was returned to Afghanistan by the Croatian authorities. The same statistics also

show that the vast majority of the asylum applications made by Afghan asylum-seekers in

Croatia have been closed due to their lack of interest in the procedure, without an examination

on the merits, given that Croatia is a transit country for the vast majority of them. As regards

those examined on the merits, the Committee notes that, during the period 2018–2024, a total

of 55 nationals of Afghanistan obtained refugee protection, while 114 saw their requests for

asylum rejected. In conclusion, the Committee does not consider that the statistics produced

by the parties are sufficient to demonstrate that the complainant, if transferred to Croatia

under the Dublin III Regulation, would not have access to an adequate asylum procedure in

Croatia or would risk chain refoulement to Afghanistan before his asylum claims were

properly assessed.

10.11 The complainant also claims that he would not have access to adequate medical care

in Croatia. The Committee notes that the complainant’s family already sought and received

medical care in Croatia, and that the complainant does not raise any complaint as to the

quality of the medical care that his family received. Moreover, the complainant does not

demonstrate that he will not have access to proper medical assistance in Croatia. The

Committee further notes that, as a result of the treatment the complainant received in the

State Party, his medical condition has improved. In that connection, the Committee notes the

State Party’s submission 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 Croatia would place him in real, personal, present and foreseeable danger of

being subjected to torture upon transfer to Croatia. 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.

11.

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 Croatia would expose him to a real, foreseeable, personal and present

risk of being subjected to treatment contrary to article 3 of the Convention.

12.

The Committee, acting under article 22 (7) of the Convention, concludes that the

deportation of the complainant to Croatia 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 Croatia about the

complainant’s medical needs in order to facilitate the continuity of his medical treatment

upon his arrival in Croatia.

32 N.A. v. Switzerland, para. 9.9.