CRC/C/101/D/200/2022

GE.26-14708 (E) 021126 021126

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, concerning communication

No. 200/2022*, **

Communication submitted by:

G.N. (represented by counsel, Joelle Spahni and

Carry Tang)

Alleged victims:

G.N., L.M.K., K.B.M.M., L.I.N., H.H. and

K.Q.M.

State Party:

Switzerland

Date of communication:

11 November 2022

Date of adoption of Views:

25 September 2026

Subject matter:

Return to Croatia of five children and their

mother under the Dublin III Regulation

Procedural issues:

Exhaustion of domestic remedies; admissibility

ratione personae; substantiation of claims

Substantive issues:

Non-refoulement; 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, 3, 6, 12, 19, 22, 24, 26, 27, 37 and 39

Article of the Optional Protocol:

7 (e) and (f)

1.1

The author of the communication is G.N., born in 1974. She is submitting the

communication on behalf of her children, H.H., born in 2005, L.M.K., born in 2007,

K.B.M.M., born in 2010, K.Q.M., born in 2013, and L.I.N., born in 2016. The author and her

children are nationals of Burundi and members of the Tutsi ethnic group. The author claims

* Adopted by the Committee at its 101st session (1–28 September 2026).

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

Suzanne Aho, Thuwayba Al Barwani, Hynd Ayoubi Idrissi, Rinchen Chophel, Timothy Ekesa, Bragi

Gudbrandsson, Mariana Ianachevici, Cephas Lumina, Faith Marshall-Harris, 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, Philip Jaffé and Juliana Scerri

Ferrante did not participate in the consideration of the communication.

United Nations

CRC/C/101/D/200/2022

Convention on the

Rights of the Child

Distr.: General

16 October 2026

English

Original: French

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that her children would be victims of a violation by Switzerland of their rights under articles

3, 6, 19 (2), 22, 24, 26, 27, 37 and 39 of the Convention if they were returned 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 (the Dublin III Regulation). She also claims

that, during the asylum procedure, the rights of K.B.M.M., L.I.N. and K.Q.M. under articles

3 and 12 of the Convention were violated. The author is represented by counsel. The Optional

Protocol entered into force for the State Party on 24 July 2017.

1.2

On 16 November 2022, 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 children and the author to Croatia while their case was under

consideration by the Committee.

Facts as submitted by the author

2.1

The author and her five children fled Burundi on 7 August 2022 and attempted to enter

the European Union via Croatia, where they were forcibly pushed back three times by police

officers with dogs. On 23 August 2022, they succeeded in entering Croatia. Upon finding

them, the police fired shots into the air to frighten them and force them into a dark, crowded

truck. They were transported along with other persons and then locked up in an unidentified

basement or underground shed. The author and her children did not have access to an

interpreter or lawyer and were not told why they were being held, by whom or whether they

were at an official place of detention. During their detention, they were given only a piece of

bread and had to drink water from the bathroom tap and sleep on the floor. Their personal

effects were confiscated. The next day, the author was separated from her children and

harassed until she signed a document that she did not understand. On 25 August 2022, the

family applied for asylum in Sisak. After two days in detention, the police took the author

and her children to a train station where they slept on the floor. The next day, they were taken

by train to a camp where they were harassed and yelled at by the authorities. In addition, they

were discriminated against because of the colour of their skin, as they received a lesser

quantity and lower quality of food than white asylum-seekers. Because of these inhuman

conditions, the lack of interpreters and their inability to obtain medical care, the family left

the camp and continued their journey.

2.2

While they were fleeing, the author and her children were stopped by police officers

who insulted the author and ignored her request for water for the children. L.M.K. and

K.B.M.M. were separated from the rest of the family and, despite their age, were ordered to

kneel and raise their hands in the air while the rest of the family fled into the woods. Police

officers began hitting and yelling at L.M.K. and K.B.M.M. because they could not produce

their identity documents. Finally, they were released and found the rest of their family in the

woods of Slovenia, where they saw asylum-seekers drown.

2.3

On 31 August 2022, the author and her children arrived in Switzerland, where they

applied for asylum that same day. On 16 September 2022, the author, L.M.K. and H.H. were

heard in connection with the application of the Dublin III Regulation and mentioned the

violence to which they had been subjected. L.M.K. described her state of health, but the State

Secretariat for Migration took no measures in this regard. K.B.M.M., L.I.N. and K.Q.M.,

who were over 6 years of age at the time, were not heard.

2.4

On 30 September 2022, the Croatian authorities accepted a request made by the State

Secretariat for Migration on 19 September 2022 for them to take back the family.

Consequently, on 5 October 2022, the State Secretariat for Migration decided to dismiss the

asylum application. It also asserted that the Croatian asylum system did not have systematic

shortcomings that would place asylum-seekers at risk of inhuman or degrading treatment and

that pushbacks affected only persons entering the country illegally. It considered, furthermore,

that the incidents alleged were not sufficiently supported by concrete evidence, which called

into question the credibility of the account. It referred to an assessment carried out by the

State Party’s embassy in Croatia regarding respect for human rights in the Croatian asylum

system. Lastly, it noted that the medical conditions of the author and her children did not

make transfer to Croatia impossible, as that country has adequate medical infrastructure.

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2.5

In her appeal of 14 October 2022 before the Federal Administrative Court, the author

referred to a report by the Swiss Refugee Council that stressed that returns to Croatia were

unreasonable given the widespread police violence there against refugees, including against

children and encompassing physical, psychological and sexual violence and other forms of

torture, and the pushbacks. According to the author, these issues had been acknowledged by

the Croatian Government. The author pointed out that the accounts given by herself and her

children L.M.K. and H.H. were consistent and that they had submitted photographs of their

arrest by the police. She pointed out that the children were suffering from extreme fatigue,

nightmares and severe anxiety at the thought of possibly returning to Croatia. L.M.K. needed

psychological care and potentially therapy to cope with the trauma. She also had vision and

hearing problems. The State Secretariat for Migration had not, however, thoroughly

examined these medical issues. It was not until 8 November 2022 that L.M.K., K.B.M.M.

and H.H. were able to speak with a psychologist. Lastly, the author asserted that K.B.M.M.,

L.I.N. and K.Q.M. had not been heard.

2.6

On 18 October 2022, the Federal Administrative Court stayed the family’s deportation.

On 20 October 2022, the Court rejected the author’s appeal against the decision of the State

Secretariat for Migration. It found that K.B.M.M., L.I.N. and K.Q.M. did not have interests

distinct from those of the author and that she had failed to raise a claim regarding a violation

of their right to be heard at the time of the interviews relating to the application of the Dublin

III Regulation. It was of the view, furthermore, that a written statement from the author was

sufficient. According to the Court, there were no shortcomings in the Croatian asylum system.

Regarding police violence in Croatia, the Court noted that the family had been able to file an

asylum application in Croatia and had been readmitted. Furthermore, according to the Court,

deportation would constitute a violation of article 3 of the Convention for the Protection of

Human Rights and Fundamental Freedoms (European Convention on Human Rights) only in

the event of a significant impairment of the enjoyment of life, which was not the case. The

family could turn to the Croatian authorities when necessary. In addition, there was no basis

for concluding that the children had been treated in a manner inconsistent with article 3 of

the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.

2.7

According to a doctor’s report dated 8 November 2022, L.M.K. and K.B.M.M. suffer

from severe post-traumatic stress disorder as a result of what had happened in Croatia. With

regard to L.M.K., the doctor notes the need for “many years of specialized medical treatment

or even several months of hospitalization”, as well as a latent risk of suicide and signs that

suggest that she had been the victim of threats of sexual violence. Regarding K.B.M.M., the

doctor urgently recommends that he receive specialized treatment for his trauma. According

to the doctor, the health of the two children would deteriorate without treatment. H.H. was

diagnosed with moderately severe post-traumatic stress disorder and given a favourable

prognosis with appropriate treatment. The doctor emphasizes that deportation to Croatia

would expose the children to traumatic events that would lead to a significant worsening of

their post-traumatic stress disorder.

Complaint

3.1

According to the author, the Swiss authorities neither assessed nor considered the best

interests of the children and did not hear K.B.M.M., L.I.N. and K.Q.M. before making a

decision regarding their return. Consequently, the State Party has violated articles 3 and 12

of the Convention.

3.2

The author asserts that Croatia violated articles 3, 6, 19 and 37 of the Convention by

repeatedly pushing back the family, detaining them in inhuman conditions and denying them

access to medical care, adequate food and water. Furthermore, the forms of assistance

provided for in articles 19 (2), 24 and 39 of the Convention are not available in Croatia. By

ordering their return to Croatia, the State Party exposes the author and her children to the risk

of being detained and separated from each other again, in violation of articles 9 (1) and (4)

of the Convention. Furthermore, the State Party took account neither of the violation by

Croatia of articles 22 and 2 (2) of the Convention and the likelihood that the violation would

be repeated in the event of deportation, nor of the real risk that the author and her children

would be subjected to inhuman or degrading treatment and not have access to safe and

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adequate housing, social assistance, schooling, legal representation, medical and psychiatric

care and rehabilitation. The State Party has thus violated the children’s rights to development,

physical integrity, security and medical care under articles 3, 6, 19 (2), 22, 24, 26, 27 and 39

of the Convention.

3.3

According to the author, the Swiss authorities disregarded the intolerable conditions

for asylum-seekers in the Croatian healthcare system and the family’s inability to make

themselves heard due to their lack of access to translation services and legal representation.

They failed to take into account the vulnerability of the author and her children and the fact

that their urgent needs would not be met in Croatia. In addition, the fact that the State Party

relied on the designation of Croatia as a “safe third country” without conducting a specific,

individualized assessment of the risks that the children would face in Croatia constitutes a

violation of the prohibition against refoulement. The family would live there under

intolerable and inhuman conditions. There are therefore substantial grounds for believing that,

if they were returned to Croatia, the children would face a risk of irreparable harm, in

violation of article 37 (a) of the Convention.

State Party’s observations on admissibility and the merits

4.1

In its observations of 15 June 2023, the State Party asserts that the Federal

Administrative Court was unable to take into account the medical report dated 8 November

2022, which was submitted after the Court issued its ruling. The author could have put the

report forward in an application for re-examination under article 111b of the Asylum Act of

26 June 1998. The State Secretariat for Migration could have then reassessed the situation

from a humanitarian perspective. The medical report is therefore inadmissible under article

7 (e) of the Optional Protocol.

4.2

The State Party contends that the communication is manifestly unfounded and

insufficiently substantiated, as most of the allegations are stated in very general terms. The

author refers to article 2 (2) of the Convention but does not allege a violation by the State

Party of that provision. Furthermore, it is clear from the decision of the State Secretariat for

Migration and the ruling of the Federal Administrative Court that the claims are unfounded.

These authorities carefully examined the situation of asylum-seekers in Croatia and the risks

that the family would face if transferred to that country. The author therefore seeks to obtain

a new assessment of facts already examined. Moreover, she is an adult and cannot claim to

be the victim of a violation of the Convention.

4.3

On the merits, the State Party recalls that Croatia is required to comply with its

international and European human rights obligations. Inquiries made by the Embassy of

Switzerland in Croatia revealed no evidence of systemic deficiencies in the Croatian asylum

system. The inquiries showed that persons transferred to Croatia under the Dublin III

Regulation receive support from the Croatian authorities in terms of housing, assistance,

schooling and integration. Various non-governmental organizations provide support to

asylum-seekers. In its landmark ruling E-1488/2020, the Federal Administrative Court

concluded that asylum-seekers’ access to medical and psychosocial care in Croatia was

guaranteed. Asylum-seeking children were entitled to primary and secondary education

under the same conditions as Croatian nationals and could begin attending school within 30

days of the submission of an asylum application. The Swiss authorities also noted that

persons transferred to Croatia under the Dublin III Regulation were not affected by pushbacks

and had access to an asylum procedure. 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. Furthermore, there was nothing to indicate that the asylum

procedure for the author’s family could not continue or be reopened or that the family would

be deprived of support on a lasting basis. The State Party emphasizes that transfers under the

Dublin III Regulation, which constitute legal entries through Zagreb, are in no way

comparable to illegal entry into the country.

4.4

According to the State Party, Croatia is, in principle, presumed to comply with its

international obligations, respect the safety of asylum-seekers and ensure that they are

protected in accordance with international law. In the present case, that presumption has not

been rebutted, as persons transferred to Croatia under the Dublin III Regulation are not

systematically subjected to treatment contrary to international law. The State Secretariat for

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Migration and the Federal Administrative Court took into account the family’s situation and

arguments and did not simply rely on the “safe third country” argument.

4.5

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

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

stay in a country offering better living conditions. In the present case, at the time of the ruling

of the Federal Administrative Court, the family had been residing in Switzerland for two

months; there could therefore be no question of its having become deeply integrated in

Switzerland. The children will be transferred to Croatia with the author, on whom their

development most depends. In the document in which it accepted the request to take back the

author and the children, Croatia identified them as a family, so they will not be separated.

The Federal Administrative Court therefore concluded that the transfer could not be

considered an uprooting capable of undermining the children’s development and,

consequently, their best interests.

4.6

The Federal Administrative Court concluded that the alleged ill-treatment of the

family in Croatia had not been properly substantiated, as the photograph submitted had no

probative value. The statements of the author and children do not indicate that they were

personally subjected to acts of torture or treatment amounting to torture. They left the camp

less than a week after their arrival in Croatia and provided no evidence that they would have

been deprived on a lasting basis of the material conditions provided for 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 (recast), that they would

have been subjected to inhuman or degrading treatment, that they would be unable to obtain

the necessary medical care in Croatia or, in the light of the remedies that they had pursued in

Switzerland, that they would be unable to assert their rights in Croatia if necessary. The report

cited by the author is general in nature. She has not demonstrated that the reception conditions

would reach the threshold of hardship and severity for a violation of international law.

4.7

According to the State Party, the health problems cited are not severe enough to justify

not transferring the author and her children to Croatia. At the time of the ruling of the Federal

Administrative Court, there was nothing to indicate that the children had any conditions that

were so severe or specific that they could not be treated in Croatia. The state of health of each

child was properly considered by the State Secretariat for Migration and the Federal

Administrative Court. In any event, Croatia, which has adequate medical infrastructure, is

required to provide access to the necessary medical care, including at least emergency care

and essential treatment for illnesses and serious mental disorders. Lastly, asylum-seekers are

entitled to receive healthcare services there, the costs of which are covered. Potential

difficulties in obtaining care relating to communication barriers are insufficient to call into

question the reasonableness of the transfer. In the event of temporary restrictions, the family

may contact the competent agencies or charitable organizations. There is therefore nothing

to suggest that a transfer to Croatia would be contrary to the children’s best interests. If

necessary, it will fall to the Swiss authorities in charge of carrying out the transfer to

communicate to their Croatian counterparts the information needed to ensure appropriate

medical care.

4.8

Regarding the allegation of a violation of the procedural aspects of articles 3 and 12

of the Convention, the State Party asserts that K.B.M.M., L.I.N. and K.Q.M. were not capable

of fully and effectively forming their own views, as understood in Swiss case law. They were

able to assert their right to be heard through the author, who made statements about the

experiences and state of health of each and about how their rights would be violated in the

event of a transfer. The record does not indicate that the interests of K.B.M.M., L.I.N. and

K.Q.M. differed from those of the author. Furthermore, during the interviews on

16 September 2022, the family’s former representative never suggested questioning them.

The family did not present any convincing arguments before the Federal Administrative

Court in this regard.

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

5.1

In her comments dated 31 October 2023, the author states that the State Secretariat for

Migration rejected her repeated requests for a medical and psychiatric evaluation of her

children, despite its duty to investigate ex officio. She therefore considers that the national

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authorities could have become aware of the medical information contained in the certificate

dated 8 November 2022. Furthermore, the Federal Administrative Court had already

concluded that their health problems were not an obstacle to their transfer to Croatia. Under

these circumstances, the only way to prevent the return of the family to Croatia was to file a

request for interim measures with the Committee.

5.2

The author states that she explained in the communication how her family had been

personally affected by the ill-treatment in Croatia. She argues that, following traumatic

experiences, the persons affected may not be able to provide all details in a clear and coherent

manner. Despite this, the author and her children were able to coherently demonstrate how

they had been ill-treated in Croatia.

5.3

Regarding the alleged lack of evidence of a violation of article 2 (2) of the Convention,

the State Party overlooks the fact that, during the asylum proceedings, the author and her

children repeatedly pointed out that they had been discriminated against because of their skin

colour; the State Party, however, referred to these events only in general terms and its

authorities failed to sufficiently examine the current situation in Croatia, particularly with

regard to traumatized children.

5.4

The author asserts that separating her children from her would be contrary to their best

interests. The State Party did not conduct a sufficiently thorough assessment of her state of

health, particularly with regard to its potential impact on her children. According to a medical

certificate dated 10 October 2023, she suffers from post-traumatic stress disorder and

episodes of depression. The author is therefore a victim under the Convention.

5.5

The author argues that the State Party does not demonstrate that Croatia is fulfilling

its obligations towards asylum-seekers. Given the countless reports of human rights

violations against asylum-seekers in Croatia and her family’s own traumatic experiences, the

author is surprised that the State Party comes to the conclusion that the allegations are general

ones and that it fails to recognize that the pushbacks constitute a systemic problem. The

principle of mutual trust has been undermined in the light of reports of pushbacks on Croatian

territory, including of persons returned under the Dublin III Regulation. In its decision 2 A

269/22 of 8 May 2023, the Braunschweig Administrative Court in Germany found that it was

possible to distinguish between the risks faced by persons returned under the Dublin III

Regulation and those faced by other asylum-seekers only if the former faced no risk at all.

That was, however, not the case; confidence in the assurances provided by Croatia was

therefore not justified. In the present case, it is incoherent for the State Party to assert that the

situation of persons returned under the Dublin III Regulation is different from that of other

returned persons.

5.6

According to the author, the State Party is relying on outdated information and

theoretical obligations when it asserts that asylum-seekers in Croatia have access to medical

care. According to the Rehabilitation Centre for Stress and Trauma, Croatia does not have an

adequate mechanism for identifying vulnerable persons.1 Numerous reports highlight that the

psychosocial support for persons returned under the Dublin III Regulation is inadequate.

Recent information suggests that Médecins du Monde, the only organization providing

medical and psychological support at the asylum centre in Croatia, has had to halt its

operations there owing to a lack of funding. Croatia would therefore be unable to provide the

author and her children the stable, ongoing medical and psychological care that they need.

5.7

A medical certificate for K.Q.M. dated 5 October 2023 points out that returning her

to a place where traumatic events occurred would pose a risk to her mental health and have

serious consequences for her psychological well-being. According to another medical

certificate, dated 19 October 2023, the consequences of return would be disastrous for the

children’s psychological stability and health. The lack of access to care, combined with their

trauma, could lead to an irreversible deterioration of their health. The State Party has not

demonstrated how their situation would be different after their return. Indeed, if a child

suffering from post-traumatic stress disorder had been unable to receive a basic level of

1 See https://asylumineurope.org/wp-content/uploads/2020/11/balkan_route_reversed.pdf and

https://asylumineurope.org/reports/country/croatia.

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healthcare or speak to a doctor owing to the language barrier, her situation would be no

different after the return.

5.8

The author asserts that the State Party has not put forward any concrete arguments

regarding the best interests of the children. The State Party is of the view that the evidence is

insufficient, but K.B.M.M., L.I.N. and K.Q.M. were not heard and therefore did not have the

opportunity to express their views on the matter. Furthermore, the State Party did not consider

the children’s stage of development or their prognosis in the event of their transfer to Croatia.

In this regard, the author reaffirms that the return could aggravate the children’s post-traumatic stress disorder. She highlights that, despite their young age, they have already made

significant progress in terms of their integration in Switzerland, particularly in their studies.

In addition, the family has already been separated twice. Pointing out the obligations

incumbent on Croatia is insufficient to guarantee that the family will not be separated again.

5.9

To be able to file a criminal or civil complaint in Croatia, a person must be represented

by a lawyer; the author, however, would not be able to afford the services of one. In addition,

a translation would need to be arranged in order for the authorization for the lawyer to act on

her behalf to be valid. According to the European Committee for the Prevention of Torture

and Inhuman or Degrading Treatment or Punishment and the European Court of Human

Rights, Croatia does not effectively investigate cases of ill-treatment. Because of its

experiences, the family has no confidence in the functioning of the police and judicial

systems in Croatia.

5.10

The author asserts that the State Party violated article 3 of the Convention by failing

to take sufficient account of her children’s vulnerability, in particular by failing to conduct

an individual assessment of their risk of being subjected to violent and degrading treatment

and of not having access to medical assistance, education or safe housing. The author argues,

under article 6 of the Convention, that the State Party did not sufficiently examine the

children’s access to adequate medical care, social, legal and financial support and the

conditions necessary for them to be able to develop in safety. Numerous reports, as well as

their own experiences, demonstrate that they would be exposed to serious physical or

psychological violence, in violation of article 19 (2) of the Convention, if they were returned

to Croatia. The State Party failed to ensure that they receive the necessary humanitarian

assistance and are able to enjoy the rights enshrined in the Convention relating to the Status

of Refugees. It also failed to consider the family’s particular vulnerability, in violation of

article 22 of the Convention. It did not thoroughly examine whether the care required for

their mental disorders would be available in Croatia, in violation of articles 23 and 24 of the

Convention. By failing to guarantee the children access to housing, social support and

education, the State Party violated their rights under article 27 of the Convention. The State

Party did not take seriously the violations that they experienced in Croatia or the risk of chain

refoulement that they would face in the event of return, in violation of article 37 of the

Convention. The State Party did not take the necessary measures to ensure the physical and

psychological recovery of the children, in violation of article 39 of the Convention.

State Party’s additional observations

6.

In its additional observations dated 14 November 2023, the State Party notes that the

project under which Médecins du Monde formerly provided medical care in Croatia expired

in March 2023. However, funding for Médecins du Monde has once again been made

available, retroactive to 1 August 2023. The State Party is providing interim funding until the

Croatian Government makes other arrangements for the provision of medical care. Médecins

du Monde has already been able to resume its operations at the centre for asylum-seekers in

Zagreb. In addition, psychosocial care in Croatia is provided by the Croatian Red Cross,

which has entered into a contract with the Croatian authorities for that purpose. The State

Party notes that the medical documents submitted by the author with her comments could

have been submitted in support of an application for re-examination. Furthermore, the

family’s medical problems are not so severe that they cannot be treated in Croatia.

Author’s additional comments

7.1

In her additional comments dated 9 April 2024, the author argues that, from May to

August 2023, Médecins du Monde was unable to provide medical assistance at reception

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centres. Since the Croatian Government had not yet made other arrangements for the

provision of medical care, the State Secretariat for Migration extended its commitment until

the end of February 2024 and then again until the end of March 2024. At the time the author

submitted her comments, there was still no funding from the Croatian Government. The

reliance on renewed financial support from the State Party made the situation unpredictable

and volatile. The author notes that in a statement dated September 2023, Médecins du Monde

warned against transfers under the Dublin III Regulation, asserted that the State Secretariat

for Migration intended to use the mechanism to carry out deportations to Croatia and

indicated that the system did not guarantee adequate access to healthcare in Croatia, a country

that was not a safe destination for return. The situation with respect to medical infrastructure

at Croatian asylum centres remains precarious despite the interim funding provided. The

author refers to an email of 7 March 2024 in which a representative of the Centre for Peace

Studies indicates that the capacity of Croatian reception centres is far from sufficient.

According to the author, the Croatian asylum system is overburdened and unable to provide

adequate care for vulnerable persons.

7.2

On 15 May 2026, the author submitted written proof of the consent of H.H. and L.M.K.

to the submission of the communication.

Issues and proceedings before the Committee

Consideration of admissibility

8.1

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

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

whether the communication is admissible under the Optional Protocol.

8.2

The Committee notes that the author has provided copies of the written consent of

H.H. and L.M.K. to the submission of the present communication. It also notes that the author

has provided neither evidence of such consent from K.B.M.M., L.I.N. and K.Q.M. nor an

explanation for its absence. Recalling that, pursuant to article 5 (2) of the Optional Protocol,

where a communication is submitted on behalf of an individual or group of individuals, this

shall be with their consent unless the author can justify acting on their behalf without such

consent, the Committee is of the view that the author has validly submitted the

communication on behalf of H.H. and L.M.K. but not on behalf of K.B.M.M., L.I.N. and

K.Q.M. Consequently, without evidence of their consent, the Committee declares the

communication inadmissible insofar as it was submitted on behalf of K.B.M.M., L.I.N. and

K.Q.M.

8.3

The Committee takes note of the State Party’s argument that it cannot take into

account the medical certificates issued after the ruling of the Federal Administrative Court

of 20 October 2022, in particular those dated 8 November 2022, 5 October 2023, 10 October

2023 and 19 October 2023. The Committee notes that, according to the State Party, the author

could have put them forward in the context of an application for re-examination under article

111b of the Asylum Act of 26 June 1998. The Committee recalls that the State Party must be

given an opportunity to assess new evidence falling within the scope of the Convention before

the Committee considers the communication under the Optional Protocol.2 In the present case,

the Committee notes that the medical certificates appear to contain new information that,

according to the State Party, could not be taken into account by the national authorities; in

particular, the record shows that, while none of the children yet had a diagnosis at the time

that the author approached the Federal Administrative Court, the certificates in question

contain information on several diagnoses for them. The Committee notes that the author does

not seem to dispute that she could have filed an application for re-examination with the most

recent medical evidence. With respect to her argument that the Federal Administrative Court

had already determined that the children’s state of health did not constitute an obstacle to the

family’s deportation, the Committee considers that a prior national assessment does not

demonstrate that an application for re-examination would be ineffective. Furthermore, the

Committee takes note of the author’s argument that the State Secretariat for Migration should

2 A.S. v. Switzerland (CRC/C/100/D/163/2021), para. 7.2; F.M.-M. v. Switzerland

(CAT/C/46/D/399/2009), para. 6.5; and K.K.H. v. Canada (CAT/C/15/D/35/1995), para. 5.

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GE.26-14708

9

have taken additional steps to document the children’s state of health but considers that she

has not demonstrated that she was prevented from submitting such evidence herself in the

context of an application for re-examination. The Committee is therefore of the view that the

author has not explained why she did not submit this new evidence to the national authorities

and, consequently, that it cannot take it into account.

8.4

The Committee notes that the communication was submitted on behalf of the children

and the author herself. The Committee recalls that the Convention protects the rights of

children and not those of adults and considers that the communication is incompatible ratione

personae with the provisions of the Convention insofar as it was submitted on behalf of the

author.3

8.5

The Committee takes note of the State Party’s observation that the author invokes

article 2 (2) of the Convention but does not allege a violation of that provision by the State

Party. In the absence of any allegation by the author that the State Party has violated or is

violating this provision, the Committee declares this argument inadmissible under article 5

(1) of the Optional Protocol.

8.6

The Committee notes that, according to the State Party, the communication is

inadmissible because it is manifestly unfounded and insufficiently substantiated. The

Committee takes note of the author’s claims under articles 26 and 27 of the Convention

regarding the risk that she and her children would not have access to social security and an

adequate standard of living in Croatia. However, the Committee notes that she has not

provided detailed information to support these allegations, especially as the family left the

camp where it was staying less than a week after its arrival in Croatia. Nevertheless, the

Committee is of the view that the author has sufficiently substantiated her communication

for the purposes of admissibility by explaining her allegations that the national authorities

had failed to sufficiently consider the children’s best interests and vulnerability when they

decided not to examine their asylum application and to return them to Croatia. The

Committee therefore finds that the allegations of violations of articles 3, 6, 19, 22, 24, 37 (a)

and 39 of the Convention are admissible insofar as they were submitted on behalf of L.M.K.

and H.H. and proceeds with its consideration of the merits.

Consideration of the merits

9.1

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

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

9.2

The Committee takes note of the author’s allegations that the State Party failed to

sufficiently consider the best interests and vulnerability of L.M.K. and H.H. when the State

Secretariat for Migration decided not to examine the family’s asylum application and to

return them to Croatia, a decision that was upheld by the Federal Administrative Court. The

Committee also takes note of the author’s allegations that the authorities failed to consider

the violations of her rights and those of her children in Croatia, where they were allegedly

pushed back multiple times, detained, separated from each other and subjected to violence

and discrimination. If returned, they would once again be exposed to these risks and would

not have access to the care needed for their health problems, including psychological and

psychiatric care. The Committee also takes note of the State Party’s arguments that the author

has not demonstrated that the family’s return to Croatia would result in a violation of the

children’s rights under the Convention. The State Party further argues that the author’s claims

are formulated in general terms and are not supported by sufficient evidence.

9.3

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

substantial grounds for believing that there would be 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,4 and that such non-refoulement obligations apply irrespective of whether

3 S.M., F.M. and H.M. v. Belgium (CRC/C/98/D/143/2021), para. 6.2; U.A.I. v. Spain

(CRC/C/73/D/2/2015), para. 4.4; Y. and Z. v. Finland (CRC/C/81/D/6/2016), para. 9.3; and G.R. et al.

v. Switzerland (CRC/C/87/D/86/2019), para. 10.3.

4 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)

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10

GE.26-14708

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.5 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.6

9.4

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.7 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.8

9.5

The Committee recalls that the Dublin III Regulation is based on the principle that an

application for asylum must be examined by the authorities of the State in which the first

asylum application was lodged (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, as well as articles 3, 22 and 37 of the Convention, the

Committee emphasizes that the scope for the exercise of States’ discretion in the application

of the Dublin III Regulation calls for an individual assessment of each child’s situation, with

the best interests of the child made a primary consideration. This assessment should help

prevent any transfers that would expose the child to a real and serious risk of violations of

his or her rights, including inhuman or degrading treatment.9

9.6

The Committee recalls that it is for the national authorities to examine the facts and

evidence and to interpret and enforce domestic law, unless their assessment has been clearly

arbitrary or amounts to a denial of justice. The Committee’s role is therefore not to interpret

domestic law and 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 a primary consideration in that assessment.10

9.7

In the present case, the Committee takes note of the State Party’s arguments that, in

their decision regarding return, the Swiss authorities noted that persons transferred to Croatia

under the Dublin procedure are not affected by pushbacks and have access to an asylum

procedure in line with the rule of law. Moreover, the Swiss authorities argue that, as the

author has already filed an asylum application in Croatia, it is reasonable to expect that that

procedure would continue upon her return. Regarding the risk of refoulement, the Committee

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

that various organizations had criticized migration practices in Croatia, including with

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

migration, para. 46.

5 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), para. 25.

6 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.

7 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),

paras. 29 and 33.

8 M.T. v. Spain (CRC/C/82/D/17/2017), para. 13.4; 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 (CRC/C/92/D/101/2019), para. 9.5.

9 M.H. v. Switzerland (CAT/C/82/D/1107/2021), para. 10.2.

10 C.E. v. Belgium (CRC/C/79/D/12/2017), 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 (CRC/C/92/D/101/2019), para. 9.6.

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respect to the pushbacks at its borders. They had, however, considered the practices to mainly

concern persons entering Croatia illegally and not to apply in the context of transfers under

the Dublin procedure, which are carried out legally through Zagreb. The Committee is of the

view that the author has not demonstrated that L.M.K. and H.H. would face a risk of being

pushed back if they were returned to Croatia under the Dublin III Regulation, in the light of

the State Party’s observations regarding access to asylum procedures in Croatia for persons

transferred under that regulation.

9.8

The Committee notes the author’s statement that, if her family is transferred to Croatia,

it would face a risk of chain refoulement. In this regard, the Committee takes note of the State

Party’s argument that the author’s presence in Croatia would be legal if the transfer was

carried out in accordance with the Dublin III Regulation. It takes note of reports of

shortcomings in the Croatian asylum procedure but is of the view that these do not support

the author’s claim that the State Party would violate the rights of L.M.K. and H.H. under the

Convention by exposing them to a risk of chain refoulement. There is also no specific

evidence in the record to suggest that the author, L.M.K. and H.H. would face a risk of

transfer from Croatia to Burundi.

9.9

The Committee notes that the author states that, after arriving in Croatia, she and her

children were detained in inhuman conditions and subjected to ill-treatment and

discrimination. The Committee also notes that the State Secretariat for Migration considered

that the incidents cited by the family were not sufficiently supported by concrete evidence,

which cast doubt on the accounts of the various family members. The Committee notes,

however, that the record indicates that the national authorities merely observed that the family

had not provided any evidence but did not find any inconsistencies in the family members’

statements. The Committee also notes that the author provided consistent accounts of the

family’s living conditions in Croatia and of how the members of the family were treated by

the Croatian authorities. The Committee takes note of the allegations contained in the reports

cited by the author regarding the ill-treatment of asylum-seekers in Croatia. The Committee

recalls, however, that the occurrence of human rights violations in a country is not, of itself,

sufficient for it to conclude that an individual would be personally at risk of being tortured if

deported there.11

9.10

With regard to the alleged risk of being subjected to inhuman treatment and not having

access to medical care in the event of return, the Committee takes note of the violent incidents

experienced by L.M.K. and H.H. in Croatia, incidents that occurred in a documented context

of violence in the border area between Croatia and Bosnia and Herzegovina. However, the

Committee notes that, according to the national authorities, the family’s return to Zagreb

under the Dublin III Regulation would not place L.M.K. and H.H. at risk of reliving past

experiences. Regarding the medical care that the family would require, 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 that

the record shows that the author raised the issue of the children’s psychological problems in

her appeal before the Federal Administrative Court and that the Court found that the problems

were not so serious as to preclude return and could be treated in Croatia. The Committee also

takes note of the fact that the State Party is providing interim funding for the care provided

to asylum-seekers in Zagreb by Médecins du Monde until the Croatian Government makes

other arrangements for the provision of medical care. The Committee notes that the record

shows that the national authorities duly considered the children’s state of health but found

that it did not constitute an obstacle to their return, given that medical care was available in

Croatia. The Committee does not consider that this assessment was manifestly arbitrary or

constituted a denial of justice, or that the best interests of the children were not a primary

consideration. The Committee also notes the lack of information in the record that would

support a conclusion of systemic violence in the context of returns carried out under the

11 M.H. v. Switzerland (CAT/C/82/D/1107/2021), para. 10.7.

12 G.R. et al. v. Switzerland (CRC/C/87/D/86/2019), para. 11.6.

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GE.26-14708

Dublin III Regulation. Furthermore, the Committee is of the view that the author has not

demonstrated that the development of L.M.K. and H.H. would not be ensured in Croatia, that

they would not have access in Croatia to protection and to education, rehabilitation and social

services, or that they would be at risk of violence while in the custody of the author or of any

other person in whose care they would be placed.

9.11

In the light of the foregoing, the Committee concludes that the return of the children

and their mother to Croatia under the Dublin procedure would neither expose L.M.K. and

H.H. to a real and personal risk of ill-treatment nor be an obstacle to their access to the

requisite medical treatment and follow-up and would not constitute a violation by the State

Party of their rights under articles 3, 6 (2), 19 (2), 22, 24, 37 (a) or 39 of the Convention. The

Committee requests the State Party to take all necessary measures to convey to the Croatian

authorities the relevant information regarding the medical needs of L.M.K. and H.H. and to

ensure the continuity of any medical treatment during their transfer and upon their arrival in

Croatia, in cooperation with the Croatian authorities.

10.

The Committee therefore:

(a)

Decides that the communication is inadmissible under article 5 (1) and (2) of

the Optional Protocol insofar as it was submitted on behalf of G.N., K.B.M.M., L.I.N. and

K.Q.M.;

(b)

Finds that the facts before it do not disclose a violation of the rights of L.M.K.

and H.H. under articles 3, 6 (2), 19 (2), 22, 24, 37 (a) or 39 of the Convention;

(c)

Decides that the present decision shall be transmitted to the author of the

communication and, for information, to the State Party.