European Court of Human Rights

 

FOURTH SECTION

DECISION

Application no. 17200/11
S.B.
against Finland

The European Court of Human Rights (Fourth Section), sitting on 24 June 2014 as a Chamber composed of:

          Ineta Ziemele, President,
          Päivi Hirvelä,
          George Nicolaou,
          Nona Tsotsoria,
          Paul Mahoney,
          Krzysztof Wojtyczek,
          Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 16 March 2011,

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 partial decision of 2 September 2013,

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

1.  The applicant, Ms S.B., is a Moroccan national, who was born in 1986. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Mr Leo Hertzberg, a lawyer practising in Helsinki.

2.  The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

A.  The circumstances of the case

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

4.  The applicant arrived in Finland on 18 July 2007 with a visa granted by the Finnish consulate in Rabat.

5.  On 10 September 2007 the applicant married an Algerian man in Finland and she was granted a residence permit on the basis of family ties until 19 January 2010. She divorced on 7 September 2009.

6.  On 21 December 2009 the applicant sought asylum as well as the extension of her residence permit. She stated that her adoptive mother lived in Finland and that they were very close.

7.  On 18 March 2010 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected her asylum application and decided to order her removal to Morocco. In its reasons the Service stated that the applicant’s story contained conflicting information concerning, inter alia, with whom she had lived in Morocco. Her story was thus not fully credible. The threats imposed by private parties were not as such sufficient grounds to grant asylum. Since 2004 Moroccan women no longer needed permission from their father to marry and divorces had become more common in Morocco. The police had a special unit for investigating domestic violence and a shelter system was in place for women. It was nowadays possible for a woman to live alone in Morocco. The applicant had not shown any reason why she could not obtain protection from the Moroccan authorities if needed. Even though the applicant had taken part in student protests, she had not been arrested and her name was not known to the Moroccan authorities. It was not credible that she would be persecuted in Morocco for political reasons. Nor was it credible that she would be persecuted due to the fact that she was married to an Algerian man. As to the residence permit, the Service noted that the applicant’s adoption had not been registered in Finland. In any event, the applicant was an adult and could not be considered a family member of her adoptive mother.

8.  The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the Immigration Service’s decision be quashed.

9.  On 3 November 2010 a District Court (käräjäoikeus, tingsrätten) confirmed the applicant’s adoption in Finland. It found that the applicant’s aunt had taken care of her since she was four years old. Even when the aunt moved to Finland in 1997, she had been in close contact with the applicant. In 2000 the adoption had been registered in Morocco. The applicant’s adoption could be confirmed in Finland only when she had become an adult.

10.  On 7 January 2011 the Administrative Court rejected the applicant’s appeal on the same grounds as the Immigration Service. This decision was served to the applicant on 27 January 2011.

11.  By letter dated 17 February 2011 the applicant appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) requesting a stay on expulsion, which was not granted.

12.  On 22 February 2011 the applicant was detained with a view to preparing her removal.

13.  On 24 February 2011 a District Court found, when deciding on the applicant’s detention, that the applicant’s state of health prevented her removal at that time but that the removal could be enforced when her condition allowed it. She was released from detention on the same date.

14.  On 28 February 2011 the applicant was admitted to the closed ward of a psychiatric hospital due to psychotic depression. She was admitted at least until 3 March 2011.

15.  On 11 March 2011 the police decided to detain the applicant again. However, this was not possible as the applicant was apparently still hospitalised.

16.  On 13 March 2011 the applicant was admitted to a psychiatric hospital in Helsinki. She was diagnosed as severely depressed, psychotic and suicidal. She was apparently hospitalised until 27 May 2011.

17.  On 16 March 2011 the applicant lodged an application with the Court, requesting that the removal to Morocco be stayed. On 17 March 2011 the Court indicated an interim measure under Rule 39 of the Rules of Court and held that the applicant should not be removed to Morocco in the light of her physical and mental condition. The Government was requested to submit to the Court independent medical evidence of the applicant’s fitness to travel prior to the implementation of any possible future attempt to remove her.

18.  In April 2012 the Government informed the Court about the applicant’s situation. The applicant’s health had improved during the autumn and winter of 2011 but had deteriorated again in February 2012 when the police had asked for a new psychiatric evaluation. Since then the applicant had not been able to eat and had been suffering from severe sleeping problems. Her eating problems and suicidal tendencies were likely to lead again to hospitalisation.

19.  On 11 June 2013 the Supreme Administrative Court refused the applicant leave to appeal.

B.  Relevant domestic law

Constitution of Finland

20.  According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.

Aliens Act

21.  Section 147 b of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004, as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders. The annex of the Decision contains common guidelines on security provisions for joint removals by air, including, inter alia, an obligation for the Member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air.

COMPLAINT

22.  The applicant complained under Article 3 of the Convention that she would be in danger if removed to Morocco. Her father had threatened to kill her because she had married an Algerian man in Finland. He did not accept her divorce either. This issue was a family matter and the Moroccan authorities would not intervene in such matters. Also, she would be persecuted in Morocco for political reasons. Moreover, the applicant was in bad physical as well as mental health. She had been admitted to a psychiatric clinic on 28 February 2011 and again on 12 March 2011. She was suffering from severe malnutrition, severe depression and was suicidal.

THE LAW

23.  The applicant complained that she risked being subjected to treatment contrary to Article 3 of the Convention if removed to Morocco.

24.  Article 3 of the Convention reads as follows:

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

25.  The Government noted that the applicant had been granted a residence permit on the basis of her studies for the period between 11 November 2013 and 31 May 2014. The applicant had renewed her application for a residence permit and the matter was currently pending before the Finnish authorities. According to section 54 of the Aliens Act, a new residence permit was granted if the requirements under which the alien had been granted his or her previous fixed-term residence permit were still met. An alien who had been granted a temporary residence permit for studying was granted a new temporary residence permit for seeking work after he or she had received a degree or other qualification. Therefore, in the Government’s view, the applicant could not currently claim to be a victim under Article 34 of the Convention.

26.  In any event, the Government observed that, despite the disturbances in the applicant’s home country, it could not be regarded as so unsafe that she could not return there. The situation in the country had not changed since the domestic decisions had been given. The applicant should turn to the Moroccan authorities for protection against threats by private individuals. She had not shown that she would be of particular interest to the Moroccan authorities. Moreover, as found by the Finnish authorities and courts, the situation for women in Morocco had improved.

27.  As to the applicant’s state of health, the Government noted that the applicant had suffered from severe depression in March 2011 and that she had been admitted to a psychiatric hospital in March and May 2011. She had been admitted again in March 2012 when she had also had suicidal thoughts and severe eating problems. The Supreme Administrative Court had been in possession of the latest medical certificates concerning the applicant when refusing her leave to appeal in June 2013. In addition, the police always took into account, on the basis of the Aliens Act and the relevant EU regulations, the person’s state of health at the time of the removal and, if necessary, postponed enforcement.

28.  The Government observed that mental health care was available in Morocco. In particular, treatment for depression as well as for anxiety disorders was in general available in outpatient and inpatient clinics. Moreover, a wide range of psychotropic medication was available, including the antidepressant used by the applicant since 2010. The applicant therefore had access to treatment for her severe depression, post-traumatic disorder and generalised anxiety disorder in Morocco. The possible availability of better treatment in Finland did not amount to a ground entitling the applicant to stay in Finland. The applicant’s case was thoroughly examined by the Finnish authorities who had not found any grounds to show that she would be facing a real risk of being treated in a manner contrary to Article 3 of the Convention if removed to Morocco.

29.  The applicant noted that several severe changes in her life had taken their toll on her mental health. The quick examination of her asylum application by the Finnish authorities had been conducive to worsening her condition. However, after the execution of the applicant’s removal to Morocco had been stayed by the Court, her medical condition had become substantially better and she had been able to obtain a residence permit in Finland.

30.  The Court observes that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).

31.  In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Morocco, bearing in mind the general situation there and her personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108).

32.  As argued by the Government, the Court does not find the general human rights situation in Morocco to be of such a nature as to show, on its own, that there would be a violation of the Convention if the applicant were to return to that country. The Court has therefore to establish whether the applicant’s personal situation is such that her return to Morocco would contravene Article 3 of the Convention.

33.  The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005; N.A. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008; and R.C. v. Sweden, no. 41827/07, § 50, 9 March 2010). Where such evidence is adduced, it is for the Government to dispel any doubts about it.

34.  The Court observes, from the outset, that the Government as well as the domestic authorities and courts have questioned the applicant’s credibility and pointed to certain inconsistencies in her story. The applicant’s story contained conflicting information concerning, inter alia, with whom she had lived in Morocco. These authorities did not find it credible either that she would be persecuted in Morocco for political reasons. Nor was it credible that she would be persecuted due to the fact that she had been married to an Algerian man. The Court acknowledges that it is often difficult to establish, precisely, the pertinent facts in cases such as the present one. However, it accepts that, as a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned.

35.  As to the personal circumstances of the applicant, the Court therefore shares the Government’s view that the applicant has not shown any reason why the Moroccan authorities would have a particular interest in her or why she would not obtain protection from the Moroccan authorities if needed. Even though the applicant had taken part in student protests, she was never arrested, nor was her name known to the Moroccan authorities. In such a situation, the applicant should turn in the first place to the Moroccan authorities for protection against threats by private individuals.

36.  Moreover, as found by the Finnish authorities and courts, the situation for women in Morocco has improved during recent years. Since 2004 Moroccan women no longer need permission from their father to marry and divorces have become more common in Morocco. The police have a special unit for investigating domestic violence and a shelter system is in place for women. It is also nowadays possible for a woman to live alone in Morocco.

37.  The Court notes that mental health care is available in Morocco. It appears that treatment for depression as well as for anxiety disorders is in general available in outpatient and inpatient clinics. The applicant also has access to the antidepressant medication which has been prescribed to her since 2010. It must therefore be considered that the applicant has access to treatment for her severe depression, post-traumatic disorder and generalised anxiety disorder in Morocco (see N. v. the United Kingdom [GC], no. 26565/05, §§ 46-51, ECHR 2008; and Bensaid v. the United Kingdom, no. 44599/98, §§ 36-40, ECHR 2001-I). On the basis of the above facts, the Court finds that there are no such personal circumstances which would put the applicant at risk of treatment contrary to Article 3 of the Convention if removed to Morocco.

38.  The Court further notes that the enforcement of the applicant’s removal has been prevented on several occasions by the fact that she has not been fit to travel because she has been gravely ill or hospitalised. However, the Government have been able to show that, on each such occasion, the police have taken into account the applicant’s state of health at the time of the removal and, if necessary, have postponed its enforcement. There are no reasons to believe that this practice of assessing an appropriate state of health, which has a legal basis both in the domestic law as well as in EU law, would not continue in the future (see paragraph 21 above). The Court is therefore assured that the domestic law provides sufficient safeguards to conclude that the applicant’s health is taken into account at the time of the removal and that the removal be postponed, if the applicant’s health so requires.

39.  Finally, the Court takes note of the fact that the applicant has been granted a residence permit on the basis of her studies until 31 May 2014. According to the Government, it is probable that her residence permit will be extended even beyond this date. It is thus possible that the applicant would not be subject to imminent removal but that she might be able to stay in Finland for the time being. Even assuming that this were not the case, the general situation in Morocco or the applicant’s personal circumstances are not such that they would prevent her removal to Morocco.

40.  Having regard to all of the above, the Court concludes that there are no substantial grounds for believing that the applicant would be removed from Finland in a manner contrary to the Convention or that she would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if deported to Morocco in the current circumstances. Accordingly, the complaint under Article 3 of the Convention must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

41.  In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court unanimously

Declares the application inadmissible.

     Fatoş Aracı                                                                        Ineta Ziemele
Deputy Registrar                                                                       President