CCPR/C/127/D/2956/2017 5.2 The State party refers to article 3 (2) of the Dublin Regulation, which provides that a State member of the European Union becomes responsible for the examination of an asylum claim where it is impossible to transfer an applicant to the member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for authors in that member State, resulting in a risk of inhuman or degrading treatment within the meaning of article 4 of the Charter of Fundamental Rights of the European Union. The State party recalls that a member State may decide to examine an asylum application, even if not required to by the Dublin Regulation, including on the basis of the non-refoulement obligation. Furthermore, the jurisprudence of the Constitutional Court and the Supreme Administrative Court obliges the Austrian authorities to consider articles 3 and 8 of the European Convention on Human Rights in decisions on the removal of asylum seekers under the Dublin Regulation. 5.3 The State party observes that the Bulgarian authorities discontinued the authors’ asylum proceedings upon their own request and that the appeals of the mother and the children against that decision were also rejected. The State party argues that it is unclear whether the authors still resided in Bulgaria and whether they wished to pursue their communication, and that the communication should be rejected if the authors had returned to their country of origin. 5.4 Concerning the authors’ claim of a violation of article 7 of the Covenant, the State party recalls the Committee’s general comment No. 20 (1992) on the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, paragraph 20 of which provides that States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. The State party further recalls that the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant provides that the article 2 obligation requiring that States parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The State party also submits that “a real risk” entails that the risk must be the necessary and foreseeable consequence of the removal.15 5.5 The State party argues that the Austrian Federal Office for Immigration and Asylum and the Federal Administrative Court carefully and thoroughly examined the authors’ personal circumstances, including their health, the alleged ill-treatment by the Bulgarian police, including the use of dogs, 16 and the best interest of the children. They also conducted an in-depth examination of the general situation of asylum seekers in Bulgaria. Both the Office and the Court took into consideration reports of non-governmental organizations, UNHCR statements and reports of the Austrian liaison officer of the Federal Ministry of the Interior on the treatment of asylum seekers and the needs of returnees under the Dublin Regulation. Neither the Office nor the Court determined that there was a real risk of torture or cruel, inhuman or degrading treatment. The Austrian authorities provided reasons as to why they could not accept the authors’ claims regarding threats by Bulgarian security forces17 and made sure that they were able to travel without medical supervision. Moreover, acting in compliance with the Dublin Regulation, the Austrian authorities shared the authors’ health data with Bulgaria. 15 16 17 A.R.J. v. Australia (CCPR/C/60/D/692/1996), para. 6.6. The initial communication does not claim that the Bulgarian authorities used police dogs. No other information has been provided on this by either of the parties. The State party does not clearly state whether it means that the Austrian authorities found the authors’ account of threats by Bulgarian security forces not credible or whether they disagreed with the claim that the authors ran the risk of suffering again from such threats upon return. The State party also does not explain what its reasons were for not accepting the authors’ claim. 7