On September 22, 2021, the case was won in the UN Human Rights Committee.

Заголовок: On September 22, 2021, the case was won in the UN Human Rights Committee. Сведения: 2024-05-25 04:06:10

The case "A.M. v. Switzerland". Views of the Committee on the Rights of the Child dated September 22, 2021. Message No. 95/2019.

In 2019, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Switzerland.

As seen from the text of the Considerations, the author argued that the rights of M.K.A.H. (the author's son) provided for in articles 2 (paragraph 2), 6, 7, 16, 22, 24, 27, 28, 29, 37 and 39 of the Convention will be violated by the State party if he is expelled to Bulgaria, where he faces a real threat of inhuman and degrading treatment (paragraph 3.1 of the Considerations).

The Committee's legal position: The Convention [on the Rights of the Child] recognizes the interdependence and importance of all rights (civil, political, economic, social and cultural) in enabling all children to develop their mental and physical abilities, individuality and talents to the maximum extent possible (paragraph 9.6 of the Considerations).

General comment No. 6 (2005) of the [Committee on the Rights of the Child] provides that States should not return a child to a particular country if there are serious grounds to believe that there is a real risk that irreparable harm may be caused to him, for example, but not exclusively, such as is stipulated in the articles 6 and 37 of the Convention; and that such obligations to refrain from refoulement (non-refoulement) apply regardless of whether serious violations of the rights guaranteed in the Convention are committed by non-State actors and whether such violations are targeted or are an indirect consequence of certain actions or omissions. The degree of danger of such serious violations should be assessed taking into account the factors of age and gender. Such an assessment should be carried out in accordance with the principle of prudence and, if there are reasonable doubts that the receiving State can protect the child from such threats, States parties should refrain from deporting the child (paragraph 10.4 of the Views) (See: K.I.M. v. Denmark (CRC/C/77/D/3/2016), paragraph 11.8.).

One of the most important considerations to be taken into account when making decisions regarding the deportation of a child should be to ensure the best interests of the child and that such decisions should be made in accordance with a procedure that provides due process guarantees that, upon return, the child will be provided with safety and adequate care and opportunities to exercise his rights. The Committee also recalls that the burden of proof cannot be placed solely on the author of the communication, especially since the author and the State party do not always have equal access to evidence and often only the State party has relevant information (paragraph 10.5 of the Views). The conditions for providing alternative housing to an evicted person, consistent with the obligations of States parties under the Covenant, may vary depending on the level of development of the State and its available resources. A radical change of housing by a person of the author's age can seriously undermine his habitual way of life (paragraph 12.6 of the Considerations).

The Committee considers that the mental health of the mother, the main person for the child caring for him, is essential for the harmonious development and survival of the child (paragraph 10.8 of the Considerations).

Article 12 of the Convention guarantees the right of the child to be heard in any judicial or administrative proceedings affecting him. The Committee recalls that after the child decides to be heard, he will have to determine how he wants to be heard: either directly or through a representative or an appropriate body. Furthermore, this article does not establish any age restriction on the right of the child to express his or her views and that it does not encourage States parties to introduce age restrictions in law or in practice that would infringe on the right of the child to be heard on all matters affecting him or her... [A]The best interests of children require that their situation be assessed separately, whatever the reasons that led their parents to apply for asylum (paragraph 10.11 of the Considerations).

The Committee notes that "family" within the meaning of the Convention means a whole range of structures capable of providing care, upbringing and development to a young child, including a nuclear family, an extended family and other traditional or modern forms of community-based organization (paragraph 10.12 of the Views).

The Committee's assessment of the factual circumstances of the case: the author's allegations that the State party did not take into account the best interests of the child when considering an asylum application, in violation of article 3 of the Convention, were taken into account. The Committee drew attention to the author's allegations that their expulsion to Bulgaria would violate the rights of her son, M.K.A.H., under articles 3 (paragraph 1), 6 (paragraph 2), 22, 27, 28, 37 and 39 of the Convention, since being a child traumatized by the armed conflict in the Syrian Arab Republic and due to his refugee status, he will not be able to receive in Bulgaria the support necessary for a decent life, with access to education, housing, medical care and social support necessary for his social reintegration and rehabilitation. The Committee also took into account the author's claims that the state of her own mental health, including severe mental disorders, cannot be considered separately from the state of health of her child, since she is the only person who could provide him with the necessary care in Bulgaria (paragraph 10.2 of the Views).

In this regard, the Committee drew attention to reports provided by the author and third parties that Bulgaria does not have an integration program for beneficiaries of international protection who face serious difficulties in accessing housing, employment, social benefits and medical care. He took note, in particular, of a report issued in October 2019 by the Office of the United Nations High Commissioner for Refugees, which states that the lack of adequate reception conditions and integration prospects forces many asylum seekers to leave the country before their application is considered or shortly after granting asylum, that there are no targeted assistance measures in Bulgaria integration and support of people with special needs, and that the threat of being homeless is real. The Committee also took into account the decision of the UN Human Rights Committee in the case of R.A.A. and Z.M. v. Denmark", in which the Committee considered that the return of the couple and their child to Bulgaria would violate their rights under article 7 of the International Covenant on Civil and Political Rights, since they risked deprivation and need, and the father would not have access to the medical care he needed (paragraph 10.6 of the Views).

The Committee pointed out the following - in analyzing the asylum application, the State party took into account the fact that Bulgaria is a party to treaties relating to human rights and the protection of persons enjoying additional protection, including Directive 2011/95/EU, but did not properly take into account numerous reports indicating that the risk of inhuman or degrading treatment The treatment of children in situations similar to that of M.K.A.H. is real. The Committee also noted that the State party had not taken due account of the situation of M.K.A.H. as a victim of the armed conflict and an asylum seeker who was allegedly subjected to ill-treatment during his stay in Bulgaria; and it did not attempt to take the necessary steps to carry out a personalized risk assessment to which M.K.A.H. would be exposed in Bulgaria, checking what the conditions of admission for him and the author would actually be, including in terms of access to education, employment, housing, medical care and other services necessary for the child's physical and psychological readaptation and reintegration into society. The Committee took note of the State party's argument that third-country nationals could seek the help of charitable organizations in Bulgaria. At the same time, he pointed out that the support of charitable organizations is not the fulfillment by the state of its obligations, but a palliative (paragraph 10.7 of the Considerations).

The Committee stressed that when the author and M.K.A.H. applied for asylum, they explicitly stated that M.K.A.H. was a stateless person. He noted that the State party had not attempted to take the necessary steps to verify whether the child could obtain citizenship in Bulgaria. The Committee considered that compliance with article 7 of the Convention requires States to take positive measures to realize the right to acquire citizenship. The State party, aware of M.K.A.H.'s lack of citizenship, should have taken all necessary measures to ensure that he would be able to obtain citizenship if he returned to Bulgaria. Consequently, taking into account the circumstances of the present case, the Committee concluded that in the event of return to Bulgaria, the rights of M.K.A.H. under article 7 of the Convention would be violated (paragraph 10.10 of the Views).

The Committee took note of the author's claim that the State party violated article 12 of the Convention because the national authorities did not hear M.K.A.H. (who was 11 years old at the time) during the examination of the asylum application. The Committee also took into account the arguments of the State party, which argued that the child had not been heard because of his young age and that he had exercised his right to be heard through his mother. Therefore, in the circumstances of the present case, the Committee considered that the absence of a direct interview with the child constituted a violation of article 12 of the Convention (paragraph 10.11 of the Views).

With regard to article 16 of the Convention, the Committee took note of the author's claims that the decision to expel him would also violate the rights of M.K.A.H., since he would be separated from his uncle and cousins, members of his family living in Europe, and that relations with them were fundamental to his well-being and social reintegration. Taking into account the specific circumstances of the case, the Committee considered that any separation of M.K.A.H. from his cousins and uncle could well create additional difficulties for the child's development and social reintegration. Thus, the Committee concluded that the return of M.K.A.H. to Bulgaria would constitute arbitrary interference with his personal life in violation of his rights under article 16 of the Convention (paragraph 10.12 of the Views).

The Committee's conclusions: the facts presented indicated a violation of articles 3 (paragraph 1) and 12 of the Convention and that the return of M.K.A.H. and his mother to Bulgaria would also violate articles 6 (paragraph 2), 1, 16, 22, 27, 28, 37 and 39 Conventions.



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