CRC/C/100/D/155/2021

GE.26-03184 (E) 300326 310326

Committee on the Rights of the Child

Views adopted by the Committee under the Optional

Protocol to the Convention on the Rights of the Child on a

communications procedure, in respect of communication

No. 155/2021*, **, ***

Communication submitted by:

M.K. and F.H. (represented by counsel, Lea

Hungerbuhler and Joelle Spahni)

Alleged victim:

M.K.

State Party:

Switzerland

Date of communication:

11 August 2021

Date of adoption of Views:

30 January 2026

Subject matter:

Removal to Croatia of a child and her mother

under the Dublin III Regulation

Procedural issues:

Exhaustion of domestic remedies; substantiation

of claims

Substantive issues:

Discrimination; best interests of the child;

development of the child; right of the child to be

heard in any judicial or administrative

proceedings affecting him or her; protection and

humanitarian assistance for refugee children;

right of the child to the enjoyment of the highest

attainable standard of health; inhuman or

degrading treatment

Articles of the Convention:

2 (2), 3, 6 (2), 12, 19 (2), 22, 23, 24, 26, 27, 37

and 39

Article of the Optional Protocol:

7 (e) and (f)

1.1

The authors of the communication are M.K., born on 13 September 2008, and her

mother F.H., born on 1 January 1974, who are nationals of Afghanistan belonging to the

* Adopted by the Committee at its 100th session (12–30 January 2026).

** The following members of the Committee participated in the examination of the communication:

Suzanne Aho, Thuwayba Al Barwani, Hynd Ayoubi Idrissi, Mary Beloff, Rosaria Correa, Timothy

Ekesa, Bragi Gudbrandsson, Mariana Ianachevici, Sophie Kiladze, Cephas Lumina, Benyam Dawit

Mezmur, Juliana Scerri Ferrante, Aïssatou Alassane Sidikou, Zeinebou Taleb Moussa and Benoit Van

Keirsbilck. Pursuant to rule 8 (1) (a) of the Committee’s rules of procedure under the Optional

Protocol to the Convention on the Rights of the Child on a communications procedure, Committee

member Philip Jaffé did not participate in the consideration of the communication.

*** An individual opinion by Committee member Benoit Van Keirsbilck (dissenting) is annexed to the

present Views.

United Nations

CRC/C/100/D/155/2021

Convention on the

Rights of the Child

Distr.: General

18 March 2026

English

Original: French

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GE.26-03184

Hazara ethnic group. They claim that M.K. would be a victim of a violation by Switzerland

of her rights under articles 2 (2), 3, 6 (2), 12, 19 (2), 22, 23, 24, 26, 27, 37 and 39 of the

Convention if she were to be removed to Croatia under Regulation (EU) No. 604/2013 of the

European Parliament and of the Council of 26 June 2013 establishing 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 (Dublin III Regulation). They also claim that during the asylum procedure

M.K.’s rights under articles 3 and 12 of the Convention were violated. They are represented

by counsel. The Optional Protocol entered into force for the State Party on 24 July 2017.

1.2

On 12 August 2021, pursuant to article 6 of the Optional Protocol, the working group

on communications, acting on behalf of the Committee, requested the State Party to refrain

from returning the authors to Croatia while their case was under consideration by the

Committee.

Facts as submitted by the authors1

2.1

M.K. lost her father to a terrorist attack when her mother, F.H., was pregnant with her.

F.H. then fled to the Islamic Republic of Iran with her brother-in-law and her elder daughter.

In 2019, the brother-in-law kidnapped the elder daughter and forced her into marriage. When

F.H. tried to save her daughter, the fiancé violently attacked her; as a result, her nose was

broken and she lost consciousness. F.H.’s brother-in-law also tried to force her to marry him

and, when she refused, he sexually assaulted her. Fearing that her daughter M.K. would be

subjected to the same violence, F.H. fled with her from the Islamic Republic of Iran to Europe.

2.2

The authors arrived in Greece in 2019. Owing to difficult living conditions in that

country, they travelled to Bosnia and Herzegovina. From there, they made three attempts to

get to Croatia but were illegally pushed back by the Croatian authorities, who, among other

actions, subjected them to physical violence and broke M.K.’s phone and glasses.

2.3

During their journey to Europe, M.K. suffered abdominal problems. After the failed

attempts to cross the Croatian border, her health deteriorated. M.K. was diagnosed with

uterine cysts and underwent emergency surgery in Bosnia and Herzegovina.

2.4

A few days after the surgery, out of desperation and despite being in pain, M.K. and

her mother made another attempt at crossing the border into Croatia. This time, the Croatian

police arrested them and brought them to a camp for asylum-seekers. Rather than attend to

M.K.’s urgent medical needs, the authorities treated her and her mother in a violent and

inhuman manner. F.H., who suffers from depression and post-traumatic stress disorder, also

did not receive healthcare. Owing to the lack of healthcare, the authors left Croatia after

approximately two months. After travelling across Italy, they arrived in Switzerland and filed

an asylum application on 26 March 2021. A comparison of their fingerprints against the

Eurodac system revealed that they had claimed asylum in Greece on 27 November 2019 and

in Croatia on 22 January 2021.

2.5

On 14 April 2021, the State Party transmitted a take-charge request to Croatia pursuant

to the Dublin III Regulation. On 15 April 2021, M.K.’s mother was interviewed by the Swiss

authorities regarding her personal information. In keeping with article 5 of the Dublin III

Regulation, a hearing was held on 21 April 2021. At this hearing, the mother stated that she

was not given a hearing in Greece. She recounted that, after leaving Greece with her daughter,

they had transited through North Macedonia before spending four months in a camp in Bosnia

and Herzegovina. After three unsuccessful attempts to enter Croatia, M.K.’s health had

deteriorated, requiring surgery in Bosnia and Herzegovina. Three days after the operation,

they were arrested at the border by the Croatian authorities. Owing to M.K.’s health, they

were not pushed back and filed an asylum application in Croatia.

2.6

During their stay in Croatia, M.K. received medical treatment for her surgical scar.

Two months later, they continued their journey to Italy, where they were arrested by the

police then obtained a certificate of departure enabling them to travel to Switzerland. The

State Secretariat for Migration granted the mother a hearing on the possibility of removal to

1 Information on the asylum procedure in Switzerland comes from data provided by the State Party.

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Croatia. She expressed her categorical refusal to return to that country, citing the ill-treatment

suffered at the hands of the Croatian authorities, including the shattering of her daughter’s

glasses. The State Secretariat informed the mother that M.K. would not be given a hearing

due to her young age and invited her to describe the reasons for opposing her daughter’s

removal. The mother noted that the reasons she had given for herself also applied to her

daughter.

2.7

Regarding health, the mother stated that she suffered from neurological problems and

memory loss, for which she had already received treatment in Switzerland. Her daughter,

who underwent surgery in Bosnia and Herzegovina for uterine cysts, suffered from persistent

pain around the scar, as well as difficulty seeing because she had not had any glasses since

their stay in Croatia.

2.8

On 26 April 2021, the Croatian authorities accepted the take-charge request

concerning the authors pursuant to article18 (1) (c) of the Dublin III Regulation. On 27 April

2021, through their counsel, the authors requested the application of the sovereignty clause

in article 17 of the Dublin III Regulation and appealed to the State Secretariat for Migration

not to proceed with their removal on humanitarian grounds. They argued that M.K. needed

emergency medical care for persistent abdominal pain and that her mother, who suffered

from severe migraines triggered by psychosocial stress, should undergo a psychological

evaluation. After another request for a psychological evaluation on 21 May 2021, the State

Secretariat concluded, on 14 June 2021, on the basis of an assessment conducted by a nurse,

that such an evaluation was not required at that stage.

2.9

In a decision of 24 June 2021, the State Secretariat for Migration dismissed the authors’

asylum request and ordered their removal to Croatia under the Dublin III Regulation. The

State Secretariat acknowledged the criticism voiced by various organizations concerning

migration practices in Croatia, in particular violent pushbacks at the border with Bosnia and

Herzegovina. However, it considered that these practices mainly concerned individuals who

entered Croatia illegally and did not apply to persons transferred under the Dublin procedure,

as such transfers were carried out legally through Zagreb.

2.10

The State Secretariat for Migration relied on inquiries made by the Embassy of

Switzerland in Croatia, including interviews with the Croatian authorities, non-governmental

organizations, international organizations and the Office of the Ombudsman. These inquiries

did not yield any evidence of systemic deficiencies in the Croatian asylum system. The State

Secretariat found that persons transferred under the Dublin III Regulation had access to a

procedure in line with the rule of law, including effective remedies, and were not exposed to

a risk of chain refoulement or to systematic violence.

2.11

With regard to the authors’ health, the State Secretariat for Migration considered that

Croatia had the medical infrastructure necessary to provide the requisite care. It noted that

the mother suffered from migraines and glaucoma, for which she had received appropriate

treatment, and that her daughter had undergone surgery for a cyst in Bosnia and Herzegovina

and had received appropriate follow-up. The request for psychological support for the

daughter had been denied, as the internal healthcare services had not found any anomalies.

The State Secretariat specified that, in accordance with 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 (recast), Croatia was obliged to ensure, at

a minimum, emergency care and treatment for serious disorders.

2.12

On 2 July 2021, M.K. and her mother appealed the decision before the Federal

Administrative Court, providing a medical report dated 23 June 2021 that stated that the

mother was suffering from a depressive episode and suspected post-traumatic stress disorder.

They claimed that the State Secretariat for Migration had not examined in detail the

consequences of removal to Croatia, for instance with regard to access to housing and

appropriate medical care, in particular psychological care. They also referred to the principle

of the best interests of the child, stating that the daughter’s medical needs, especially in

relation to her tumour, would not be sufficiently taken into account in Croatia. Lastly, they

requested that the Court apply the sovereignty clause in article 17 (1) of the Dublin III

Regulation. On 5 July 2021, the competent investigative judge ordered the temporary

suspension of the enforcement of the removal decision.

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2.13

On 9 July 2021, the Federal Administrative Court dismissed the authors’ appeal

against the decision of the State Secretariat for Migration ordering their removal to Croatia.

2.14

The Federal Administrative Court was of the view that their allegations of

ill-treatment at the Croatian border were insufficient to demonstrate systemic deficiencies in

the Croatian asylum system within the meaning of article 3 (2) of the Dublin III Regulation.

It confirmed that the State Secretariat for Migration had conducted an investigation in line

with its jurisprudence, in particular leading decision No. E-3078/2019 of 12 July 2019, and

that the clarifications provided by the Embassy of Switzerland in Croatia did not indicate a

widespread practice of pushbacks in relation to persons transferred under the Dublin III

Regulation.

2.15

Concerning the medical issues raised, the Federal Administrative Court

acknowledged that the mother suffered from migraines, glaucoma and psychological

problems but determined that these were not severe enough to cause a rapid, irreversible

deterioration of her health if removed to Croatia. Even taking into account the psychiatric

report of 23 June 2021, mentioning a suspicion of post-traumatic stress disorder, the Court

found that the healthcare conditions in Croatia were sufficient to ensure adequate follow-up.

In addition, it noted that the mother had been able to travel without difficulty or continuous

medical treatment; therefore, further medical investigations were not justified.

2.16

Regarding M.K., the Federal Administrative Court considered that her post-operative

state of health was not an obstacle to removal, as follow-up treatment could be provided in

Croatia. It noted that the State Secretariat for Migration had not specifically addressed the

best interests of the child but that this did not constitute a breach of judicial practice, as the

precedents cited were not relevant to the case.

2.17

Lastly, the Federal Administrative Court recalled that, while the assumption that

Croatia respected fundamental rights could be disproved in specific cases, the authors had

not provided a tangible demonstration that they ran a present and serious risk of a violation

of international norms. It found that there was no reason to apply the sovereignty clause in

article 17 of the Dublin III Regulation or to recognize humanitarian grounds for the purpose

of admission by Switzerland.

2.18

Owing to M.K.’s obvious mental health problems (difficulty sleeping and social

isolation), the authors’ counsel requested that she undergo a medical and psychological

examination. The examination was conducted on 10 August 2021 by a general practitioner.

According to the doctor’s report, M.K. suffers from post-traumatic stress disorder and should

receive inpatient care as soon as possible.

Complaint

3.1

The authors claim that during the asylum hearing, M.K. was not given an opportunity

to be heard separately from her mother, in breach of article 12 of the Convention. They submit

that the State Party did not assess or determine the best interests of the child and did not give

M.K. a hearing before taking a removal decision that affected her. Consequently, the State

Party has violated M.K.’s rights under articles 3 and 12 of the Convention.

3.2

The authors submit that, in deciding to remove them, the State Party did not take into

account the personal risk of ill-treatment to which they would be exposed or the fact that they

would not have access to safe housing, social assistance or education, let alone urgent access

to medical care, mental health support and rehabilitation. Thus, the State Party violated

M.K.’s right to development, physical integrity, security and healthcare, as well as its

obligations under articles 3, 6, 19 (2), 22, 23, 24, 26, 27 and 39 of the Convention.

3.3

The authors also submit that the State Party disregarded the difficult conditions for

asylum-seekers in the Croatian healthcare system and the fact that Croatia affords almost no

protection to Afghan asylum-seekers, which poses a real risk of chain refoulement. The

authors stress that the Federal Administrative Court relied on the general principle of mutual

trust concerning the conditions of return and on the designation of Croatia as a safe third

country. Furthermore, the authors claim that the State Party did not take into account M.K.’s

vulnerability or the fact that both authors’ urgent healthcare, rehabilitation and protection

needs would not be met in Croatia.

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State Party’s observations on the admissibility and merits of the communication and

on the third-party intervention

4.1

In observations dated 22 March 2022, the State Party argues that part of the

communication is inadmissible under article 7 (e) of the Optional Protocol, since the authors

have failed to exhaust domestic remedies. The State Party notes, for instance, that the authors

did not claim before the Federal Administrative Court a violation of M.K.’s right to be heard

under article 12 of the Convention. This claim was not raised either explicitly or in substance

during the domestic procedure. As a result, the Swiss authorities have not had the opportunity

to rule on this issue, which constitutes a failure to exhaust domestic remedies.

4.2

Furthermore, the State Party underscores that the medical report of 10 August 2021,

which might contain relevant information for the assessment of M.K.’s or her mother’s

medical situation, was submitted after the Federal Administrative Court had issued its

decision. The report could not therefore be taken into account by the national courts, which

strengthens the argument that domestic remedies have not been exhausted.

4.3

The State Party argues that the communication is manifestly unfounded, including

with regard to the author’s claims under article 3 of the Convention. The State Party refutes

the authors’ claim that the Swiss authorities failed to take into account M.K.’s best interests

in the decision ordering their removal to Croatia.

4.4

The State Party also refutes the authors’ claim that their removal would expose M.K.

(and her mother) to inhuman treatment, to a lack of access to healthcare, education, housing

and social assistance and to a risk of refoulement to Bosnia and Herzegovina or Afghanistan,

in violation of several other provisions of the Convention that they invoke (arts. 2 (2), 6 (2),

19 (2), 22–24, 26, 27, 37 and 39). The State Party bases its position on the decisions of the

State Secretariat for Migration and the Federal Administrative Court, which conducted a

thorough assessment of the situation in Croatia. It recalls that Croatia is a Party to the

Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights), the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment and the Convention relating to the Status of Refugees

and that it is required to respect the obligations flowing from them. In addition, Croatia

applies European directives in asylum and reception matters. Inquiries made by the Embassy

of Switzerland in Croatia did not reveal any evidence of systemic deficiencies in the Croatian

asylum system.

4.5

The Swiss authorities noted that persons transferred to Croatia under the Dublin

procedure were not affected by unlawful pushbacks and that they had access to an asylum

procedure that was in line with the rule of law. There was no evidence to suggest that the

Croatian authorities would deny access to the procedure or to remedies or that they would

violate the principle of non-refoulement. Moreover, M.K. and her mother had already applied

for asylum in Croatia in 2021; it was reasonable to assume that that procedure would be

resumed upon their return.

4.6

With regard to material and healthcare conditions, the Swiss authorities took the view

that M.K.’s health problems (post-operative pain) and those of her mother (migraines,

glaucoma, suspected post-traumatic stress disorder) were not of sufficient severity as to

preclude removal. Croatia had adequate medical infrastructure, including for the provision of

psychological care, and member States of the Dublin system were required to ensure access

to necessary care. There was nothing to suggest that Croatia would not respect its healthcare

obligations in the context of the Dublin III Regulation.

4.7

The State Party recalls that the best interests of the child are the primary consideration

in all asylum decisions. However, this consideration does not constitute an absolute right to

stay in a country offering better living conditions. The Swiss authorities took into account

the child’s age, her family situation and her degree of dependence, in keeping with the

jurisprudence of the European Court of Human Rights, and concluded that removal to Croatia

would not jeopardize her best interests.

4.8

The State Party recalls that, in accordance with the principle of non-refoulement,

States are prohibited from returning a person to a country where he or she risks suffering

irreparable harm, including through persecution, acts of torture or flagrant human rights

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violations. This principle applies also to children, in keeping with paragraphs 45 and 46 of

joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant

Workers and Members of Their Families/No. 22 of the Committee on the Rights of the Child

(2017) on the general principles regarding the human rights of children in the context of

international migration.

4.9

In the communication, M.K. repeats the claims already raised before the national

authorities. The State Party recalls that M.K.’s allegations are based on her two-month stay

in Croatia, during which she claims to have been the victim, along with her mother, of

physical violence and inhuman treatment, including unlawful pushbacks into Bosnia and

Herzegovina, and of assaults by the Croatian police, who also destroyed her glasses and

phone, and to have been deprived of access to necessary healthcare following her surgery.

The author submits that these experiences demonstrate that removal to Croatia would expose

her again to serious rights violations. However, the State Party is of the view that M.K. has

not demonstrated that she faces a present, personal and real risk of irreparable harm in case

of removal to Croatia. Her claims are general and insufficiently substantiated. The reports on

the situation in Croatia do not contain any new information that would call into question the

assessment by the national authorities. The Federal Administrative Court confirmed in

decision No. D-4957/2021 of 22 November 2021 that there were no systemic deficiencies in

the Croatian asylum system.

4.10

The State Party takes the view that the true aim of the communication is to obtain a

new assessment of the facts already examined by the State Secretariat for Migration and the

Federal Administrative Court. Yet, there is no basis for the conclusion that the examination

by the Swiss authorities was arbitrary or tantamount to a denial of justice. Contrary to M.K.’s

claims, the decisions of the State Secretariat and the Court show that they took into account

the best interests of the child and her state of health, as well as that of her mother, in keeping

with the Committee’s jurisprudence.2

4.11

On the merits, the State Party submits that there has been no violation of article 3 of

the Convention. It recalls that this provision requires the best interests of the child to be the

primary consideration in all decisions relevant to him or her. It notes, however, that the

provision does not grant a subjective right to obtain asylum or residency in a given country.

Consequently, M.K. cannot infer from the provision a right to residency in Switzerland. The

State Party finds that the national authorities took into account the best interests of the child

in their assessment and that the authors did not submit any new information that would call

into question this assessment.

4.12

In addition, the State Party argues that there was no violation of the other articles

invoked by the authors, specifically articles 2 (2), 6 (2), 19 (2), 22 to 24, 26, 27, 37 and 39 of

the Convention. These claims are based on alleged risks in case of removal to Croatia.

However, the decisions of the State Secretariat for Migration and the Federal Administrative

Court demonstrated that the personal situation of M.K. and her mother had been examined

thoroughly and that the reception conditions in Croatia were not indicative of systemic

deficiencies. The authors have not provided any additional evidence to support the finding of

a violation of these provisions.

Author’s comments on the State Party’s observations on admissibility and the merits

5.1

In comments dated 14 June 2022 on the State Party’s observations on admissibility

and the merits, the authors refute the State Party’s argument that the communication is

inadmissible for failure to exhaust domestic remedies on the grounds that, inter alia, they did

not claim before the Federal Administrative Court a violation of the right of the child to be

heard. The authors underscore that, as their appeal before the Court explicitly related to the

failure to consider the ramifications of removal for the child, the matter of the infringement

of the right of the child to be heard was raised. They argue that this constitutes raising in

substance article 12 of the Convention, which guarantees the right of children to express their

views freely in all matters affecting them. In addition, the authors criticize the State Party’s

2 C.E. v. Belgium (CRC/C/79/D/12/2017), para. 8.5

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erroneous interpretation of article 12, noting that asking a parent about their child’s opinion

does not satisfy the obligation to hear the child directly.

5.2

As for the State Party’s argument that the medical report of 10 August 2021 was

submitted too late to be taken into account in the national procedure, the authors respond that

this argument ignores the fact that their repeated requests for a proper medical and

psychological assessment were systematically denied during the national procedure. Instead

of ordering a professional assessment, the State Party relied on the informal observations of

a nurse, which the authors consider grossly inadequate. A proper medical report was only

obtained after their counsel intervened to have a thorough assessment organized.

5.3

The authors refer to article 7 (e) of the Optional Protocol, which establishes that the

exhaustion of domestic remedies is not required where the application of the remedies is

unlikely to bring effective relief. They submit that it follows from the reasoning and

established jurisprudence of the Federal Administrative Court that even a diagnosis of severe

post-traumatic stress disorder and a risk of suicide would not have precluded the removal of

the child to Croatia. Consequently, submitting the medical report at national level would have

had no objective chance of success. The only effective legal protection available was to

request interim measures from the Committee.

5.4

The authors firmly reject the State Party’s characterization of their claims concerning

the failure to take into account the best interests of the child (art. 3), the risk of inhuman or

degrading treatment in case of return to Croatia, insufficient access to essential services in

Croatia and the risk of chain refoulement (arts. 19 (2), 22–24, 26, 27, 37 and 39) as manifestly

unfounded and insufficiently substantiated. They submit that these claims are not only well

founded but are also based on evidence and legal arguments.

5.5

Regarding the State Party’s statement that the principle of the best interests of the

child, enshrined in article 3 of the Convention, does not automatically guarantee a residency

permit, the authors stress that the State Party has not demonstrated how it assessed the best

interests of the child in practice. References to email exchanges concerning the mother’s

mental health or to the short period during which the Federal Administrative Court granted a

suspension do not constitute a meaningful or professional assessment of the child’s situation.

Furthermore, the State Party’s reference to theoretical legal obligations without

demonstrating a factual assessment of the best interests of the child is insufficient. The

authors reiterate that their removal to Croatia would clearly violate the best interests of the

child and the principle of non-refoulement.

5.6

In addition, the authors highlight the close connection between the right of the child

to be heard and the assessment of his or her best interests. The fact that the State Party did

not give M.K. a hearing, despite her being over the age of 12 at the time and therefore fully

capable of expressing her opinion, constitutes a direct violation of article 12.3

5.7

Concerning the general situation in Croatia, the authors note that the inquiries

mentioned by the State Party, which were allegedly conducted by the Embassy of Switzerland

and found no systemic deficiencies in the Croatian asylum system, were neither divulged

during the national procedure nor transmitted to the Committee, thus preventing their proper

examination. Moreover, there are many credible public reports documenting serious human

rights violations committed against asylum-seekers in Croatia. The State Party’s refusal to

provide tangible evidence of Croatia respecting its legal obligations, all the while dismissing

the documented experiences and evidence submitted by the authors, weakens its position.

Using the Embassy’s unpublished findings and a recent judgment of the Federal

Administrative Court – both of which were produced by the State Party itself – is of limited

probative value and does not address the substantive concerns raised.

5.8

The authors contest the State Party’s statement that they have not demonstrated that

removal to Croatia would constitute a violation of their fundamental rights. They argue that

the State Party has not sufficiently investigated opportunities to access essential services,

such as medical and psychological care, housing, social support and education, or sufficiently

3 The authors cite the Committee’s general comment No. 14 (2013) on the right of the child to have his

or her best interests taken as a primary consideration.

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substantiated its claims in this regard. The authors provided detailed accounts of their

experience in Croatia, including the attitude of the Croatian authorities, which, despite their

attempts to seek asylum, violently pushed them back multiple times and mistreated them even

as M.K. was recovering from cancer-related surgery. During their stay in Croatia, they were

placed in quarantine in precarious conditions, were deprived of appropriate medical care

despite urgent health needs and faced linguistic barriers preventing the conduct of effective

medical consultations. Furthermore, M.K. was unable to attend school during this period of

time.

5.9

Given their vulnerability – M.K. being a convalescing child with post-traumatic stress

disorder and her mother being a survivor of sexual violence also suffering from

post-traumatic stress disorder – the authors argue that a forced return would pose serious risks

to their physical and psychological well-being. The State Party has not demonstrated how the

conditions in Croatia would be different in case of return, especially with regard to the

aforementioned lack of appropriate care. The statement that treatment would be available in

Croatia has not been corroborated by any case-specific evidence and is based solely on

theoretical obligations.

5.10

Furthermore, the authors underscore that the State Party has not conducted a

personalized risk assessment, basing itself instead on general assumptions. This approach

disregards the authors’ documented trauma and health needs, thus exposing them to

additional harm. The statement that the mother would be capable of caring for M.K. after

removal is also contradicted by the medical assessments confirming the seriousness of their

psychological problems and the need for a stable therapeutic environment.

5.11

The authors reject the State Party’s statement that the national authorities sufficiently

assessed the risk of violent pushbacks and chain refoulement in case of removal to Croatia.

They argue that the State Party’s use of general statements by the Embassy of Switzerland,

according to which pushbacks are isolated incidents rather than a systemic practice, is

misleading and does not account for the specific credible evidence adduced by the authors

during the national proceedings. The authors clearly noted that they had several times been

the victims of violent pushbacks by the Croatian authorities, and there is nothing calling into

question the veracity of their accounts.

5.12

The authors put forward a wide range of independent sources documenting the

systematic nature of pushbacks in Croatia. Reports by Amnesty International, Pro Asyl, the

European Council on Refugees and Exiles and other organizations describe widespread abuse

towards asylum-seekers, including beatings, denial of access to asylum procedures and

inhuman treatment, at the border and in the territory of Croatia. These reports also show that

individuals returned to Croatia under the Dublin III Regulation, as would be the authors’ case,

are particularly exposed to such treatment. Judicial decisions handed down in other European

countries, including the Kingdom of the Netherlands and Slovenia, have recognized the scale

and seriousness of these violations, further strengthening the credibility of the authors’

concerns.

5.13

On the merits, the authors repeat the arguments made in their initial submission. With

regard to M.K., they stress the fact that the best interests of the child were not taken into

account, especially in the light of M.K.’s cancer diagnosis and mental health, and that her

right to be heard (art. 12) was disregarded. They submit that M.K.’s right to life and

development (art. 6) has been jeopardized and that she has not been protected from violence

(art. 19 (2)). M.K. has not benefitted from the safeguards for child refugees (art. 22) and

children with disabilities (art. 23) or from access to healthcare (art. 24), social security

(art. 26), an adequate standard of living (art. 27) and protection from inhuman treatment

(art. 37). Lastly, the lack of rehabilitation support (art. 39) exposes M.K. to additional harm.

State Party’s additional observations

6.1

In its additional observations of 3 April 2023, the State Party notes that, on 22 March

2023, the Federal Administrative Court adopted reference judgment No. E-1488/2020

concerning transfers to Croatia. In the judgment, the Court examined criticism levelled at

Croatia that it expelled asylum-seekers attempting to cross its borders with Serbia and Bosnia

and Herzegovina without considering their asylum application or their personal

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circumstances and sometimes resorting to violence and even to pushbacks at the border. The

Court found it highly likely that such unlawful expulsions were a regular occurrence.

Furthermore, the Court assumed that Croatia was only a transit country for a significant share

of those seeking protection and that it was not uncommon for these people to have no

intention of seeking protection in Croatia or of waiting for the outcome of their asylum

procedure there. In the absence of an asylum application or in the event of its withdrawal,

migrants were in the country unlawfully, making them, in principle, subject to expulsion.

6.2

In the event of a transfer under the Dublin III Regulation, the focus is on whether the

applicant, whom the Croatian authorities have stated they are prepared to receive, will have

access to the asylum procedure in the country. The question of whether it was extremely

difficult for the asylum-seeker to enter the territory of Croatia is no longer a primary issue. It

should not be assumed at first glance that persons returning under the Dublin system run the

same risk as those attempting to enter or cross the country for the first time. Currently

available reports, as well as most of the jurisprudence of the other States applying the Dublin

Regulation (Austria, Belgium, France and Germany), support this assessment. In particular,

the available sources do not indicate that there are reports or documented cases of persons

transferred under the Dublin system being unlawfully expelled despite their declared

willingness to undergo the asylum procedure in Croatia. Lastly, in its reference judgment,

the Federal Administrative Court notes that this applies to transfers under the take-charge

procedure and the take-back procedure alike. According to the State Party, the reference

judgment supports its observations of 22 March 2022.

Issues and proceedings before the Committee

Consideration of admissibility

7.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol,

whether the communication is admissible under the Optional Protocol.

7.2

The Committee notes the State Party’s claim that the authors have not exhausted

domestic remedies concerning their allegations under article 12 of the Convention, as they

have not raised those issues either explicitly or in substance before the domestic authorities.

The Committee also notes that, when invited by the State Secretariat for Migration to explain

the specific reasons against the removal of M.K., the mother stated that the reasons she had

cited for herself also applied to her daughter. It further notes the authors’ argument that they

raised the issue of the failure to take into account the ramifications of removal for the child,

thereby also raising the matter of the breach of the right of the child to be heard, which they

consider as amounting to having raised in substance article 12 on the right of the child to

freely express his or her views about any matter affecting him or her. The Committee

considers, however, that the right of the child to be heard should have been raised

autonomously before the domestic authorities in order for the State Party to have the

opportunity to remedy the alleged violation.4 The Committee finds, therefore, that the claims

raised under article 12 of the Convention have not been raised explicitly or in substance

before the domestic authorities and concludes that they are inadmissible under article 7 (e)

of the Optional Protocol.

7.3

The Committee notes the State Party’s argument that the communication is

inadmissible under article 7 (f) of the Optional Protocol because it is manifestly unfounded

or insufficiently substantiated. The Committee takes the view, in this regard, that the authors

have not provided sufficient evidence to support their claims under articles 2 (2), 6 (2), 19 (2),

22, 23, 24, 26, 27 and 39 of the Convention concerning the risks they would face if removed

to Croatia and considers that these claims are better covered by their main claim, based on

article 37 (a) of the Convention. The Committee therefore declares the claims relating to

articles 2 (2), 6 (2), 19 (2), 22, 23, 24, 26, 27 and 39 insufficiently substantiated and

inadmissible under article 7 (f) of the Optional Protocol.

4 M.F. and L.B. v. Switzerland (CRC/C/98/D/148/2021), para. 6.2; and K.K. v. Switzerland

(CRC/C/92/D/110/2020), para. 8.3.

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7.4

However, the Committee considers that the authors have sufficiently substantiated,

for the purpose of admissibility, the claims under articles 3 and 37 (a) of the Convention,

namely that: (a) the State Party did not take into account the best interests of M.K. in the

removal procedure; and (b) the enforcement of the removal order to Croatia would constitute

inhuman or degrading treatment for M.K., whose physical and psychological health is fragile.

The Committee therefore declares this part of the communication admissible and proceeds

with its consideration on the merits.

Consideration of the merits

8.1

The Committee has considered the communication in the light of all the information

submitted to it by the parties, in accordance with article 10 (1) of the Optional Protocol.

8.2

The Committee notes the authors’ claims that their removal would expose M.K. (and

her mother) to inhuman treatment, to lack of access to medical care, education, housing and

social assistance and to a risk of refoulement to Bosnia and Herzegovina or Afghanistan. In

this regard, the Committee also notes the authors’ claims that, in the course of unlawful

violent pushbacks at the border between Croatia and Bosnia and Herzegovina, they suffered

physical violence at the hands of the Croatian authorities, which also broke M.K.’s phone

and glasses. The Committee further notes the State Party’s statements according to which

M.K. has not demonstrated the existence of a personal, present and real risk of irreparable

harm in the event of removal to Croatia and her claims are general and insufficiently

substantiated.

8.3

The Committee recalls that States must not return a child to a country where there are

substantial grounds for believing that there is a real risk of irreparable harm to the child, such

as, but by no means limited to, those contemplated under articles 6 (1) and 37 of the

Convention,5 and that such non-refoulement obligations apply irrespective of whether serious

violations of those rights guaranteed under the Convention originate from non-State actors

or whether such violations are directly intended or are the indirect consequence of action or

inaction. The assessment of the risk of such serious violations should be conducted in an

age-sensitive and gender-sensitive manner.6 The risk should be assessed in accordance with

the principle of precaution and, where there are reasonable doubts as to the ability of the

receiving State to protect the child against such risks, States Parties should refrain from

deporting the child.7

8.4

The Committee recalls that the best interests of the child should be a primary

consideration in decisions concerning the deportation of a child and that such decisions

should ensure – within a procedure with proper safeguards – that the child will be safe, will

be provided with proper care and will enjoy his or her rights.8 It also recalls that the burden

of proof does not rest solely with the author of the communication, especially considering

that the author and the State Party do not always have equal access to the evidence and that

frequently the State Party alone has access to the relevant information.9

8.5

The Committee recalls that its role is not to interpret domestic law or to assess the

facts and evidence in place of the national authorities but to ensure that their assessment was

not arbitrary or tantamount to a denial of justice and that the best interests of the child were

5 Joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant

Workers and Members of Their Families and No. 22 of the Committee on the Rights of the Child

(2017) on the general principles regarding the human rights of children in the context of international

migration, para. 46.

6 M.K.A.H. v. Switzerland (CRC/C/88/D/95/2019), para. 10.4. See also Committee on the Elimination

of Discrimination against Women, general recommendation No. 32 (2014) on the gender-related

dimensions of refugee status, asylum, nationality and statelessness of women, para. 25.

7 K.Y.M. v. Denmark (CRC/C/77/D/3/2016), para. 11.8; and Z.T. et al. v. Switzerland

(CRC/C/92/D/101/2019), para. 9.4.

8 Joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant

Workers and Members of Their Families and No. 22 of the Committee on the Rights of the Child

(2017), paras. 29 and 33.

9 El Hassy v. Libyan Arab Jamahiriya (CCPR/C/91/D/1422/2005), para. 6.7; Medjnoune v. Algeria

(CCPR/C/87/D/1297/2004), para. 8.3; and Z.T. et al. v. Switzerland, para. 9.5.

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GE.26-03184

11

a primary consideration in that assessment.10 In that regard, the Committee recalls that the

Dublin III Regulation should be applied and interpreted in the light of the Convention.11

8.6

In the present case, the Committee notes the State Party’s arguments that, in their

removal decision, the authorities of Switzerland had found that persons transferred to Croatia

under the Dublin procedure were not subjected to pushbacks and that they had access to an

asylum procedure in line with the rule of law. The Committee also notes the authorities’

finding that M.K. and her mother had already filed an asylum application in Croatia in 2021,

the processing of which could reasonably be expected to continue upon their return.

Regarding the risk of refoulement to Bosnia and Herzegovina or Afghanistan, the Committee

notes that the State Secretariat for Migration and the Federal Administrative Court recognized

the criticism by various organizations regarding the migration practices of Croatia, including

violent pushbacks at the border with Bosnia and Herzegovina, but considered that those

practices concerned mainly persons who entered Croatia illegally, not persons transferred

under the Dublin system, as such transfers were carried out legally through Zagreb.

8.7

Regarding health matters, the Committee recalls that the principle of non-refoulement

does not confer a right to remain in a country solely on the basis of a difference in health

services that may exist between the State of origin and the State of asylum, or to continue

medical treatment in the State of asylum, unless such treatment is essential for the life and

proper development of the child and would not be available and accessible in the State of

return.12 In the present case, the Committee notes the State Party’s arguments that the care

M.K. needs – long-term paediatric psychiatric treatment and regular cancer screening – is

available in Croatia, as is treatment for the mother’s conditions (migraines, glaucoma and

post-traumatic stress disorder), and that there is nothing to suggest that the mother would be

unable to continue to care for her daughter after removal. The Committee notes, in particular,

that during her stay in Croatia, M.K. received medical care for her surgical scar for two

months before resuming the journey to Italy. The Committee considers that the national

authorities duly assessed M.K.’s post-operative health and found that it did not preclude

removal given that follow-up treatment was available in Croatia. The Committee disagrees

that this assessment was manifestly arbitrary or tantamount to a denial of justice and that the

best interests of the child was not a primary consideration.

8.8

In the light of the foregoing, the Committee concludes that the removal of the authors

to Croatia under the Dublin procedure would neither expose them to a real and personal risk

of ill-treatment nor be an obstacle to M.K.’s access to the requisite medical treatment and

follow-up and therefore would not constitute a violation by the State Party of her rights under

articles 3 and 37 (a) of the Convention. The Committee firmly believes that the State Party

will take all appropriate measures to ensure the continuity of medical treatment for M.K. and

her mother during their transfer and upon their arrival in Croatia, in cooperation with the

Croatian authorities.

9.

The Committee, acting under article 10 (5) of the Optional Protocol, is of the view

that the facts before it do not disclose a violation of articles 3 and 37 (a) of the Convention.

10 C.E. v. Belgium, para. 8.4; E.A. and U.A. v. Switzerland (CRC/C/85/D/56/2018), para. 7.2; G.R. et al.

v. Switzerland (CRC/C/87/D/86/2019), para. 11.4; and Z.T. et al. v. Switzerland, para. 9.6.

11 Z.T. et al. v. Switzerland, para. 9.6.

12 G.R. et al. v. Switzerland, para. 11.6.

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Annex

[Original: English]

Individual opinion of Committee member Benoit Van

Keirsbilck (dissenting)

1.

I wish to express my dissenting opinion regarding the Committee’s decision to

consider the claim under article 12 of the Convention inadmissible and to declare the

communication ill-founded.

2.

With regard to admissibility, I respectfully disagree with the majority of the

Committee members when they conclude, in paragraph 7.2 of the findings, that the

allegations raised by the authors under article 12 of the Convention are inadmissible because

they were not raised either explicitly or in substance before the domestic authorities.

3.

While it is indisputable that article 12 of the Convention was not explicitly raised in

the domestic proceedings, this guarantee should be explicitly provided for in the State Party’s

legislation, particularly in the context of administrative proceedings relating to asylum or

residence.1 Hearing children in these proceedings should therefore be the rule, applicable

without the need to explicitly request the exercise of this right, and not an option applied on

a discretionary basis.

4.

Furthermore, consideration of the best interests of the child, as guaranteed by

article 3 (1) of the Convention, should be ensured explicitly through individual procedures

that form an integral part of any administrative or judicial decision concerning the entry,

residence or return of a child.2 The assessment of the best interests of the child requires that

the child be heard. This is clearly set out in the Committee’s general comments No. 12 (2009)

and No. 14 (2013), which both highlight the inextricable links between articles 3 (1) and 12.

Any decision that does not take into account the child’s views or does not give their views

due weight according to their age and maturity does not comply with the principle that the

child or children concerned must be given the opportunity to influence the determination of

their best interests.3

5.

The determination of the best interests of the child requires a separate assessment,

notwithstanding the reasons for the parents’ asylum application. A child should be heard even

when his or her interests appear to coincide with those of the parents.4 The child’s particular

reasons for emigrating or fears of refoulement should be taken into account in a specific

manner.

6.

The Committee has been led to reiterate these principles on several occasions, in

particular to the State Party concerned in the communication that is the subject of this

individual opinion. States cannot therefore ignore the importance attached by the Committee

to hearing children in administrative proceedings, particularly in matters of asylum or

residence, which affect their future and well-being. The views of the child must be heard not

as a mere formality, but as a real condition for consideration in the decision-making process.5

The Committee also noted that the failure to hear children, particularly about their traumatic

migration experiences, reveals a lack of due diligence on the part of the authorities in

assessing the best interests of the child, which constitutes a violation of both articles 3 and

1 Committee on the Rights of the Child, general comment No. 12 (2009) on the right of the child to be

heard, para. 123.

2 Joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant

Workers and Members of Their Families/No. 22 of the Committee on the Rights of the Child (2017)

on the general principles regarding the human rights of children in the context of international

migration, para. 30.

3 C.E. v. Belgium (CRC/C/79/D/12/2017), para. 8.7.

4 K.S. and M.S. v. Switzerland (CRC/C/89/D/74/2019), para 7.8; E.A. and U.A. v. Switzerland

(CRC/C/85/D/56/2018), para 7.3; and M.K.A.H. v. Switzerland (CRC/C/88/D/95/2019), para 10.11.

5 See K.S. and M.S. v. Switzerland.

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13

12 of the Convention. It concluded that the best interests of the child had not been properly

assessed in the absence of a hearing. 6 Article 3 cannot be properly implemented if the

requirements of article 12 are not met.

7.

In the present case, M.K. was capable of forming her own opinion, being 13 years old

when she arrived in the State Party. However, the State Secretariat for Migration stated that

M.K. would not be heard because of her young age. Her mother indicated that the reasons

she herself had given also applied to M.K. However, M.K. was not allowed to express her

own fears about returning to Croatia.

8.

In this regard, I find it regrettable that the communication, as is too often the case, was

submitted by both the mother and the girl, thus creating the illusion that their arguments

overlap and are identical. However, as is clear in this case, each of them has had a different

experience and each has different feelings and fears about a decision to return them. In my

opinion, it is highly desirable that communications submitted to our Committee be introduced

by the children themselves, as the holders of the rights set out in the Convention.

9.

I therefore consider that by asking the State Party to assess her best interests in the

context of a return to Croatia, M.K. implicitly but surely invoked her rights under article 12

of the Convention, such that the Committee could have raised this issue on its own initiative.

It is therefore, in my view, wrong for the Committee to have found that the allegation of a

violation of article 12 was inadmissible.

10.

I also disagree with the majority of the Committee members when they conclude that

the return of the authors to Croatia in the context of the Dublin procedure would not expose

them to a real and personal risk of ill-treatment and that, therefore, the facts before it do not

reveal a violation of articles 3 and 37 (a) of the Convention.

11.

In the context of international migration, children are particularly vulnerable to

various forms of violence and ill-treatment during migration and in countries of destination.7

Due to their vulnerability, acts that are less serious than those inflicted on adults may reach

the threshold required to be classified as cruel, inhuman or degrading treatment.

12.

Assessment of the child’s best interests must also include consideration of the child’s

safety, that is, the right of the child to protection against all forms of physical or mental

violence, injury or abuse.8 The precautionary principle requires an assessment of the potential

risks to the child and future harm to which they may be exposed, as well as other

consequences of the decision on the child’s safety.

13.

This assessment should be carried out on a case-by-case basis, depending on the

particular situation of the child or children concerned, according to the circumstances, context

and needs of those involved.9

14.

In the present case, the authors suffered considerable physical and, in the case of the

mother, sexual violence in their country of origin and during their migration journey. The

facts alleged by the authors can be characterized as cruel, inhuman and degrading treatment,

as they involve gender-based violence, physical, psychological and sexual violence. In

particular, they allege illegal pushbacks and physical assaults, notably by the authorities and

the police in Croatia.

15.

These latter facts, in particular the fact that the authors were pushed back three times

when entering Croatia and that they were finally able to enter the country because of M.K.’s

health problems, are not disputed by the State Party, which acknowledges that these practices

6 See E.A. and U.A. v. Switzerland.

7 Joint general comment No. 4 of the Committee on the Protection of the Rights of All Migrant

Workers and Members of Their Families/No. 23 of the Committee on the Rights of the Child (2017)

on State obligations regarding the human rights of children in the context of international migration in

countries of origin, transit, destination and return, para. 40.

8 Committee on the Rights of the Child, general comment No. 14 (2013) on the right of the child to

have his or her best interests taken as a primary consideration, para. 73.

9 C.E. v. Belgium, para 8.3.

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GE.26-03184

are documented in several reports and acknowledged by the European Court of Human

Rights.

16.

The fact that these practices concern only persons attempting to enter the country

without authorization, and not persons returned to Croatia under the Dublin III Regulation,

is a subtlety that is lost on a 13-year-old child who has been subjected to these violent

pushbacks and undoubtedly retains traumatic memories of her confrontation with the

authorities of the country to which she is threatened with being returned. The same applies

to the risk of chain refoulement, if Croatia does not recognize its responsibility to examine

the asylum application or if it is rejected. In the case of a child – and one who is also

traumatized – the threshold for considering treatment to be cruel, inhuman and degrading is

necessarily lower than for an adult who is able to assess the risk more rationally. In my view,

the national authorities have therefore failed to properly assess M.K.’s fear of being subjected

to further acts of violence if she were returned to Croatia.

17.

Furthermore, I would like to emphasize that the assessment of the best interests of the

child should be carried out in a multidisciplinary manner by actors independent of the

migration authorities, with the effective participation of the authorities responsible for child

protection and child welfare.10

18.

In the present case, the authority competent to take a decision in the expulsion

proceedings is also responsible for assessing the best interests of the child. This lack of

independence may legitimately give rise to the suggestion that the decision to remove the

child is not based solely on a serious and thorough assessment of the child’s best interests,

but rather on criteria related to the country’s migration policy.

19.

Consequently, I would have found the claims under articles 3 (1), 12 and 37 (a) to be

well-founded.

10 Joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant

Workers and Members of Their Families/No. 22 of the Committee on the Rights of the Child (2017),

para. 32.