European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 37159/09
H.A.U.
against Finland

The European Court of Human Rights (Fourth Section), sitting on 10 January 2012 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 15 July 2009,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr H.A.U., is a Somali national who was born in 1993. He is represented before the Court by Ms Anne Siitonen, a lawyer of the Refugee Advice Centre in Lappeenranta. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant arrived in Finland on 2 February 2009 from Sweden and sought asylum on that same day. Since he claimed to be a minor, a representative was appointed to exercise guardian’s rights in matters pertaining to his person and assets, among other matters. He was also represented by counsel.

The immigration authorities ran a check in the Eurodac system and noted that the applicant had been recorded as having entered Italy illegally on 4 August 2008. The applicant’s counsel requested that his asylum claim be dealt with by the Finnish authorities, having regard to the applicant’s age and his vulnerable position. According to the applicant, he had not been able to initiate asylum proceedings in Italy, nor had he been given any medical assistance.

On 4 March 2009 the Finnish Immigration Service (Maahanmuutto-virasto, Migrationsverket, hereinafter “the FIS”) requested the Italian authorities to take the applicant back by virtue of Article 10 § 1 of the Dublin Regulation. On 29 April 2009 Italy acceded to that request. The FIS also submitted an inquiry as to the identity of the applicant. On 13 May 2009 it received a reply that, in Italy, the applicant had been registered under the name [O.J.A.], born in 1986.

On 9 June 2009 the FIS issued its decision. Relying on the Dublin Regulation, it dismissed the application without examining its merits and ordered the applicant’s removal to Italy. It found that the Italian authorities were responsible for the examination of the applicant’s asylum claim. In its reasons the FIS noted that the applicant had claimed to be a minor. It found, however, that as the applicant had not produced an authentic official document whereby his identity could be verified, and as he had been registered as an adult in Italy, it was reasonable to determine his real age in conformity with the information he had himself submitted to the authorities upon his first entry on the territory of the Member States. The FIS further stated that the applicant had not submitted any evidence which would give reason to examine his application in Finland under Article 3 § 2 of the Dublin Regulation. As the applicant had not, according to his account, applied for asylum in Italy, the asylum proceedings had not been initiated and he had not been admitted to the reception services provided for asylum seekers. Having lodged such an application, a person had the right to have his or her asylum claim examined and the right to the same medical care services as Italian citizens, provided they registered with the National Healthcare Service. The FIS went on to state that differences in reception conditions between the receiving States were not a sufficient reason to examine a claim in another State. Taking into account all relevant circumstances, the FIS considered that the applicant’s removal to Italy was not in breach of Article 3 of the Convention or section 9(4) of the Finnish Constitution, nor was he at risk of refoulement contrary to section 147 of the Aliens Act.

On 14 July 2009 the decision was served on the applicant in his native language and in the presence of his representative. At the same time he was informed of his right to appeal against it to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen). He was also informed that the decision was directly enforceable, unless the court ruled otherwise, and that he was entitled to request the court to suspend his removal.

On the same day the applicant appealed, invoking Article 3 § 2 of the Dublin Regulation. He submitted, in particular, that he had fled from the unstable situation in his home country and he had encountered various difficulties during his journey. In Italy, he had not been able to understand what was happening as no interpreter had been present. Subsequently, he had been taken to a reception facility for adults. There had been no asylum interview, no healthcare services, or other basic facilities. He had been subjected to violence in Italy but his requests for help from the authorities had been to no avail. He maintained that he was an unaccompanied minor and contended that the register entries regarding his age in Italy could not be considered reliable. He also feared refoulement, if returned to Italy. In his letter of appeal, the applicant also requested that the Administrative Court suspend his removal to Italy.

On 15 July 2009 the applicant lodged an application with the Strasbourg Court, along with a request to stay his removal to Italy. According to the applicant, the Administrative Court had refused him the interim measure requested and the police were planning to remove him on 20 July 2009.

On the same day the President of the Section acceded to the above request indicating to the Government of Finland, under Rule 39 of the Rules of Court, that the applicant should not be removed to Italy until further notice.

On 11 December 2009 the Administrative Court rejected the applicant’s appeal, upholding the immigration authority’s decision. Having regard to the reasons given by the FIS and the relevant circumstances as a whole, the court found no reason to prevent the applicant’s removal to Italy. It also noted the Strasbourg Court’s interim measure and found that there was no reason to grant a stay of the applicant’s removal.

On 31 May 2010 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the applicant leave to appeal.

COMPLAINTS

The applicant complained that his removal to Italy would expose him to a risk of inhuman and degrading treatment contrary to Article 3 of the Convention, having regard, in particular, to the fact that he was an unaccompanied minor. He also complained under Article 13 of the Convention that, because his appeal against the immigration authority’s decision did not have suspensive effect, he did not have an effective remedy in connection with his claim under Article 3.

THE LAW

A.  Complaint under Article 3 of the Convention

The applicant complained under Article 3 of the Convention that his removal to Italy would expose him to a risk of inhuman and degrading treatment, having regard, in particular, to the fact that he was an unaccompanied minor. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government pointed out that the applicant had lodged a new asylum application on 22 December 2010 which was currently pending before the Immigration Service. On 3 February 2011 the Immigration Service had requested the Italian authorities to provide further information, inter alia, on the applicant’s identity, his registered age in Italy and whether he had sought international protection there. In their reply of 23 March 2011 the Italian authorities had informed the Finnish authorities that the applicant had been granted subsidiary protection in Italy. The applicant could thus return to Italy and, as a holder of a residence permit, he was entitled to the same health services as Italian citizens.

As the applicant had submitted misleading information both to the Finnish Government and the Court, in the Government’s view his application before the Court should be rejected as an abuse of right of individual application. The right of application was abused if it was knowingly based on untrue facts or on omission with a view to deceiving the Court. The Government maintained that the applicant had tried to mislead the domestic authorities and was at the same time complaining under Article 3 of the Convention to the Court when he in fact had been granted subsidiary protection in Italy. Alternatively, in the Government’s view, the applicant’s application should be struck out of the list of cases because, in the circumstances of the present case, it was no longer justified to continue its examination.

The applicant argued that he had not been aware of the fact that he had been granted international protection in Italy.

Article 37 § 1 of the Convention provides:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or

(b)  the matter has been resolved; or

(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court notes that it transpired that the applicant has been granted a residence permit in Italy. The Court must thus examine whether in these circumstances, having regard to Article 37 § 1 (c) of the Convention, it is justified to continue the examination of the applicant’s complaint under Article 3 of the Convention.

In the present case, the applicant complains that his removal to Italy would expose him to a risk of inhuman and degrading treatment, in particular, as he is an unaccompanied minor. According to him, in Italy he was, inter alia, taken to a reception facility for adults. There was no asylum interview, no healthcare services, or other basic facilities. He also fears refoulement, if returned to Italy.

The Court notes that, as a holder of an Italian residence permit, the applicant would no longer have to fear refoulement to Somalia, nor would he any longer face problems in respect of the Italian asylum proceedings. Moreover, as a holder of an Italian residence permit, the applicant has the right to the same medical care services as Italian citizens, provided that he is registered with the National Healthcare Service. The Court points out that, according to the Dublin Regulation system, differences in reception conditions between the receiving States are not a sufficient reason to examine a claim in another State. The Court sees a certain contradiction in the attitude of the applicant who, despite having been granted a residence permit in Italy, still wishes the Court to pursue the examination of his complaint under Article 3 of the Convention.

Furthermore, the Court notes that the applicant is no longer a minor.

In conclusion, the granting of a residence permit in Italy and the fact that the applicant is no longer a minor are circumstances which, taken together, lead the Court to consider that it is no longer justified to continue the examination of this complaint within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

It follows from the above that it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and to strike the application out of the list. This conclusion makes it unnecessary for the Court to examine the plea of inadmissibility raised by the Government, based on the abuse of right of individual application.

B.  The remainder of the application

The applicant also complained under Article 13 of the Convention that, because his appeal against the immigration authority’s decision did not have suspensive effect, he did not have an effective remedy in connection with his claim under Article 3.

The Court notes that, in the present case, the applicant requested a stay on the removal in his letter of appeal to the Administrative Court and that the authorities did not proceed with the enforcement of the removal order before that court had given its decision on the request. Even though the law did not provide for automatic suspensive effect, the applicant was de facto permitted to stay in the country while his request was examined by the court. There is not therefore any indication of a violation of the applicant’s rights under Article 13 of the Convention. Accordingly, this part of the application is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in respect of the complaint under Article 3 of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Lech Garlicki
Deputy Registrar President