CCPR/C/127/D/2956/2017
10.4 Nonetheless, the Committee considers that, in cases where a remedy said to be
available to the victim cannot shield that person from an event that the victim is seeking to
prevent and that is alleged to result in irreparable harm, such a remedy is by definition
ineffective. In the present case, the authors lodged on 25 January 2017 an appeal before the
Federal Administrative Court, which did not grant suspensive effect to their application and
later dismissed the appeal as unfounded on 8 March 2017. The father appealed against the
decision of the Federal Administrative Court but the Supreme Administrative Court
rejected that appeal on 20 February 2018. The authors were in the meantime removed to
Bulgaria on 16 March 2017. On 26 April 2017, the authors lodged an appeal before the
Constitutional Court, which granted suspensive effect to the appeal. However, the authors
were not readmitted into Austria pending the decision of the Constitutional Court, which
was delivered only on 21 September 2017, finally rejecting the authors’ appeal. The
Committee is thus not precluded from considering the communication under article 5 (2) (b)
of the Optional Protocol.
10.5 The Committee further takes note of the State party’s argument that the
communication is inadmissible due to insufficient substantiation. The Committee notes,
with regard to the authors’ claim under article 7 of the Covenant, that the State party
submits that the Austrian authorities examined the authors’ asylum applications carefully
and comprehensively, including their submissions, personal circumstances, health
conditions and the situation in Bulgaria at the time, and concluded that their removal did
not carry a risk that their human rights would be violated. The Committee also notes the
State party’s arguments that Bulgaria has undertaken to comply with the European
Convention on Human Rights, the Charter of Fundamental Rights of the European Union,
the Reception Conditions Directive and other regional and international human rights
instruments. The Committee further notes the State party’s contention that UNHCR has
lifted its recommendation not to carry out transfers to Bulgaria under the Dublin Regulation.
10.6 The Committee notes that the authors argue that, during their first stay in Bulgaria,
the police threatened them with weapons, they received inadequate nutrition, the mother did
not obtain treatment for her post-traumatic stress disorder and depression, they were forced
to apply for asylum and they were made to sleep on the floor, which the father was forced
to clean. The Committee notes that the authors also refer to a number of reports detailing
the state of asylum procedures and reception conditions in Bulgaria.
10.7 As for the authors’ claim that the Bulgarian authorities threatened them with
weapons, the Committee notes that the authors have not provided more information to
substantiate how that contributes to their claim that their removal to Bulgaria would amount
to a violation of article 7 of the Covenant. The Committee further notes that, while the
authors contend that the mother and the children did not receive medical treatment in
Bulgaria, they do not describe whether they took any steps to obtain access to such care. As
for the authors’ submissions concerning their second stay in Bulgaria and their current
plight in Iraq, the Committee will, in principle, not consider events following a removal
where it is alleged that the removal constituted a violation of the Covenant at that point in
time, unless those events shed light on the situation prevailing at the relevant time. In the
light of the submissions on all of the authors’ circumstances in Bulgaria, and noting that
while reception conditions in Bulgaria at the time of the authors’ removal were subject to
concerns, UNHCR had lifted its recommendation not to remove asylum seekers to Bulgaria,
the Committee considers that the authors’ claims under article 7 of the Covenant are
insufficiently substantiated for the purposes of admissibility. Accordingly, the Committee
concludes that the communication is inadmissible under article 2 of the Optional Protocol.
11.
The Committee therefore decides:
(a)
Protocol;
That the communication is inadmissible under article 2 of the Optional
(b)
That the present decision shall be transmitted to the State party and the
authors of the communication.
12
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