T. AND OTHERS v. FINLAND
Inadmissible
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicants, Mr T. and his wife and two minor children, are Russian nationals who were born in 1965, 1971, 1997 and 2002 respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms Kirsi Hytinantti, 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. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants are a family from the Ingushetia region of Russia. They belong to the Ingush ethnic minority and are Muslims by religion. The first applicant, the father of the family, worked as a taxi driver and also had a car repair shop. The couple have not been politically, socially or religiously active. However, in 2007 they started to have problems. The first applicant claims that for one week in July-August 2007, he worked as a driver for two men who were apparently involved in insurgency acts. One of the men was killed in 2008 and the other managed to escape the country. 5. At the beginning of 2009 the first applicant claims that masked men in army clothes came to his car repair shop to look for his client, whose car was in the shop. As the client was not there, the men took him instead and kept him in some sort of cellar for three days and ill-treated him. He was questioned about his client and about the two men he had driven around in 2007. The applicant was threatened with charges for having participated in armed attacks He was allegedly asked also to pay 600,000 roubles in order not to be charged. He paid half of the sum when he was released. After that his wife and children went to live with other relatives. The first applicant was in hiding for the rest of the year and escaped in January 2010 to Finland through Moscow and St. Petersburg, with a tourist group holding a Schengen visa. 6. While the rest of the family stayed with relatives, the armed men came to search for information about the first applicant from their neighbours and at the house of the second applicant’s mother. They did not know where the first applicant had gone, so they fled to Poland. Through other asylum seekers they obtained information that the first applicant was in Finland and they travelled there to seek asylum. 7. The second applicant submitted to the Finnish authorities two faxed documents in Russian with their Finnish translations. Those documents were addressed to the first applicant in January and February 2010 by the investigative department of the Ministry of the Interior and he was summoned for questioning as a crime suspect. The crime of which he was suspected was not, however, mentioned in the documents. The first applicant claims that he does not know why he is wanted, but claims that sometimes ethnicity and religion suffice to arouse the suspicion of the security authorities in Ingushetia. 8. The first and the second applicants both suffer from somewhat severe post-traumatic stress disorder and depression. The first applicant has also been suffering from headaches, insomnia and prostate problems which have been treated at the reception centre. Only in March 2013 he sought help for his psychological problems. He was subsequently examined and treated at the Centre for Torture Survivors (Kidutettujen kuntoutuskeskus, Centret för rehabilitering av tortyroffer) in Finland. The Deputy Chief Physician of the Centre recommended both private and group therapy together with medication for his trauma. No physical signs of ill-treatment were, however, reported. The second applicant has had symptoms of amnesia attacks and uncontrollable behaviour. She has been treated since 2012 and referred to the Centre for Torture Survivors in Finland for further examination and treatment. 9. On 9 September 2013 the applicants submitted information to the Court that the third applicant, the son of the family born in 1997, had gone missing on 7 September 2013. The third applicant was found on 18 September 2013 and subsequently reunited with the other applicants. On 23 September 2013 the second applicant gave birth to a third child who is suffering from a kidney pelvis extension. 10. The first applicant arrived in Finland on 11 January 2010 and immediately sought asylum. On 16 March 2011 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected the application, considering it not probable that the Russian authorities would be especially interested in the applicant as he had not been politically, socially or religiously active. It furthermore considered that, as the security situation was indeed relatively poor in Ingushetia, the applicant could in any event always relocate internally inside the Russian Federation. 11. The second, third and fourth applicants had sought asylum in Poland on 12 June 2010 but their applications were rejected on 29 April 2011 and their appeal was rejected on 22 July 2011. They arrived in Finland on 15 August 2011 and sought asylum on 18 August 2011. 12. Meanwhile, the first applicant had appealed against the negative asylum decision. On 16 November 2011 the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) referred the first applicant’s case back to the Immigration Service in order for them to consider the applications of the whole family together. 13. On 24 April 2012 the Immigration Service rejected the asylum applications of the whole family and ordered their removal to Russia. It considered firstly that in the first applicant’s first asylum application he mentioned the problems in Ingushetia only in very general and vague terms and without specifying any personal threats. The story became personal only in the first asylum interview. Also the authenticity of the copies of “summonses” submitted by the applicant was impossible to verify. Moreover, the Immigration Service went on to consider that, as the applicants had not been in any way active or profiled persons, it was unlikely that the Russian authorities would be interested in them if returned to Russia. The applicants could in any event relocate internally. 14. By letter dated 22 June 2012 the applicants appealed, requesting that the decision of the Immigration Service be quashed and that they be granted asylum, or alternatively, secondary protection or a residence permit due to individual humanitarian circumstances, taking into consideration also the best interest of the children and the unreasonableness of the expulsion. They also requested that an oral hearing be held. 15. On 14 January 2013 the Administrative Court rejected the applicants’ appeal and refused their request for an oral hearing as unnecessary. It considered, like the Immigration Service, that the authenticity of the faxed documents named “summons” was impossible to verify and they did not appear exactly credible. It was impossible to draw any conclusions from those summonses regarding the events about which the applicants were complaining. On the other hand, there were no reasons to doubt the applicants’ story or their credibility overall. However, the sole fact that the first applicant had been a driver for some insurgents in 2007 did not seem the sort of activity which would arouse the interest of the Russian authorities. The acts directed against him in 2009 were aimed at obtaining information from him about the others, but he was not personally suspected of any illegal activism himself. As the applicants had not been otherwise active and had no other contact with the insurgents, the Administrative Court concluded that it was unlikely that the Russian authorities would persecute the applicants if returned to Russia. It furthermore considered that the security situation was indeed unstable in the region but that it alone did not give rise to a need for international protection. 16. By letter dated 31 January 2013 the applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting also a stay on the execution of their expulsion order, which was not granted. 17. On 4 December 2013 the Supreme Administrative Court refused the applicants leave to appeal. 18. 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. 19. According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country. 20. Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts. 21. Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation. 22. According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure. 23. Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant’s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible, and if the authorities are convinced of the veracity of the application with regard to the applicant’s need for international protection. 24. According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area. 25. Section 147b of the Aliens Act (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 to 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. 26. According to the U.S. State Department’s Country Report on Russia for 2013: “The government failed to take adequate steps to prosecute or punish most officials who committed abuses, resulting in a climate of impunity. Rule of law was particularly deficient in the North Caucasus, where conflict among government forces, insurgents, Islamist militants, and criminal forces led to numerous human rights abuses, including killings, torture, physical abuse, and politically motivated abductions.” 27. The World Health Organisation’s (WHO) Mental Health Atlas from 2005 provides the following information on the mental health care situation in the Russian Federation: “Mental health is a part of primary health care system. Actual treatment of severe mental disorders is not available at the primary level. The practice of recognition and treatment of depression in primary care is developing in several regions. ... There are community care facilities for patients with mental disorders. A social rehabilitation system including workshops, rehabilitation units in industrial firms and residential homes (for about 125 000 persons) exists. Day care facilities are available for almost 15 000 persons. Home care is also provided in some cases. ... The system of Russian Ministry of Health consists of 278 mental hospitals, 164 psycho-neurological outpatient clinics (dispensaries) that include day-hospitals as separate wards in their structure (each dispensary provides sectorised coverage to a population of approximately 25 000 people); 2010 psychoneurological consulting rooms in rural areas; 1117 psychotherapeutic rooms, mostly in primary care facilities. There are also beds in 442 hostels, nursing homes and ‘internats’ under the authority of the Ministry of Social Protection. ... The country has specific programmes for mental health for refugees, disaster affected population and elderly. Programmes on refugees and disaster victims are carried out by the Ministry of Emergency Situations (EMERCOM). Elderly population are looked after by the Ministry of Social Protection. ... The following therapeutic drugs are generally available at the primary health care level of the country: carbamazepine, ethosuximide, phenobarbital, phenytoin sodium, sodium valproate, amitriptyline, chlorpromazine, diazepam, fluphenazine, haloperidol, lithium, biperiden, carbidopa, levodopa. The Ministry of Health and Social Assistance approved the list of mentally ill who would receive free medication in 1993, the funds for which were to be allocated by local institutions.”