CCPR/C/123/D/2768/2016 The complaint 3.1 The author claims that her deportation to Serbia would expose her to a violation of article 7 of the Covenant. Referring to the Committee’s general comments No. 20 (1992) on the prohibition of torture or other cruel, inhuman or degrading treatment or punishment and No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, the author submits that a State party may violate the Covenant when it is foreseeable that its decision on a person within its jurisdiction may be violating that person’s rights in another jurisdiction. 9 The Committee has also indicated that the risk must be personal and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists. Thus, all relevant facts and circumstances must be considered, including the general human rights situation in the applicant’s country of removal. 10 There are substantial grounds for believing that the removal of the author to Serbia would create a real risk of irreparable harm amounting to inhuman or degrading treatment. 3.2 The author refers to the jurisprudence of the European Court of Human Rights in Budina v. Russia, according to which the inaction of a State party in the face of severe conditions within their jurisdiction may amount to inhuman or degrading treatment.11 She also refers to the case of M.S.S. v. Belgium and Greece, in which the Court held that inappropriate reception conditions and serious shortcomings in asylum procedures amounted to inhuman and degrading treatment. 12 3.3 The author then points to the multiple deficiencies of the Serbian asylum system that have been consistently recorded over the past years in publicly available reports of national and international organizations, including the non-registration of asylum applications, routine pushbacks, delays, lack of procedural safeguards during the asylum procedure and failure to identify vulnerable applicants. 13 3.4 Persons returned to Serbia are in practice barred from accessing the asylum procedure and reception facilities. They are rather prosecuted for irregular border crossing, which is a criminal offence punishable by a fine or imprisonment. In practice, most persons are only issued with a warning; however, the court decision is accompanied by a decision of the Ministry of the Interior which terminates the asylum seekers’ right to stay on Serbian territory. Following that decision, asylum seekers are not allowed to stay in one of the refugee camps in the country and, for want of a registered residence, cannot formally lodge an asylum application in Serbia.14 3.5 In addition, there is a lack of capacity leading to a reception crisis owing to the sharp increase of migrant arrivals in Serbia. The number of migrants entering Serbia, along with issues of mismanagement at asylum reception centres, which may deny people with certificates of entry, 15 has led to many asylum seekers being forced to sleep rough in 9 10 11 12 13 14 15 4 See Kindler v. Canada, (CCPR/C/48/D/470/1991). See X. v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18. European Court of Human Rights, Budina v. Russia (dec.), Case No. 45603/05, decision of inadmissibility adopted on 18 June 2009. European Court of Human Rights, M.S.S. v. Belgium and Greece Case No. 30696/09, Judgment, 21 January 2011. The author refers to Hungarian Helsinki Committee, “Serbia as a safe third country: revisited” (June 2012); Commissioner for Human Rights of the Council of Europe, “Serbia should end degrading reception conditions for asylum seekers”, 12 December 2013; Belgrade Centre for Human Rights, “Right to asylum in the Republic of Serbia, 2014” (March 2015); Amnesty International, “Europe’s borderlands: violations against refugees and migrants in Macedonia, Serbia and Hungary” (July 2015); and Human Rights Watch, “Serbia: police abusing migrants, asylum seekers: beaten, extorted, shoved back across the border”, 15 April 2015. The author also mentions that the main shortcomings of the Serbian asylum system are comprehensively presented in a document published on 12 October 2015 by the European Legal Network on Asylum and the European Database of Asylum Law, entitled “Desk research on the procedural and reception system for asylum seekers in Serbia”. See European Council for Refugees and Exiles, “Crossing boundaries: the new asylum procedure at the border and restrictions to accessing protection in Hungary” (October 2015). The author mentions that once an individual has entered Serbian territory, in order to access the asylum process, he or she must register his or her intention of seeking asylum with the border police