CCPR/C/125/D/2923/2016 Annex [Original: French] Individual opinion (dissenting) of Committee member Yadh Ben Achour 1. The Committee notes in paragraph 9.4 of the present Views that the State party challenges the admissibility of the communication on the grounds that the author’s claims under article 7 and article 2 (3) (a), read in conjunction with article 7, of the Covenant, are manifestly ill-founded. Having rejected this argument, the Committee then proceeds to examine the merits of the case. 2. In fact, this is not really the argument made by the State party. The latter makes a different argument, a procedural argument based on article 5 (2) (b) of the Optional Protocol, according to which the Committee shall not consider any communication from an individual without first having ascertained that the individual has exhausted all available domestic remedies. The scope of article 5 is twofold: (a) First, it means that, generally speaking, the case must have been submitted to the domestic courts before it can be examined by the Committee. While the reference to “all remedies” is undoubtedly problematic, there is no need to go into this here because it is outside the scope of the present analysis; (b) Article 5 (2) (b) also means, however, that each individual complaint raised before the Committee must have been submitted beforehand to the domestic courts that hear applications for judicial remedy. 3. In the present case, the State party has placed particular emphasis on the argument that the author did not present the claims he raises before the Committee, on points of fact or of law, before either the Hungarian judicial or administrative authorities. To begin with, the author did not describe any particular conditions or circumstances of his experience in Bulgaria that might have revealed a situation of particular vulnerability to the Hungarian authorities. The State party asserts that, during the author’s asylum interview on 28 May 2016, he did not refer to any ill-treatment suffered during his stay in Bulgaria. Secondly, the author did not put forward the arguments relating to his state of health even though the Hungarian authorities asked specific questions about this. The State party notes that the author did not complain about any mental or other kind of health problems in the appeals phase of the proceedings either, and that the psychiatric diagnosis of post-traumatic stress disorder was only issued by the Cordelia Foundation on 11 November 2016, that is, after the Metropolitan Court had delivered its legally binding decision on 17 October 2016. And lastly, from a legal standpoint, the author did put forward any arguments concerning the State party’s possible violation of article 7 of the Covenant or of article 2 (3) (a), read in conjunction with article 7, if he were to be returned to Bulgaria. The State party asserts that the author never referred to the alleged violation of his rights during the asylum procedure but only invoked them in the present communication. As the author has not refuted these claims by the State party, the requirements of article 5 (2) (b) of the Optional Protocol have not been satisfied. 4. Consequently, and as argued by the State party, the communication submitted to the Committee in this case should have been declared inadmissible. GE.19-08969 15