M.R. AND OTHERS v. FINLAND
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo
1. The applicants, Ms M.R. and her two minor children, are Iraqi nationals who were born in 1980, 2005 and 2008 respectively. They were represented before the Court by Ms Sini Ruutu, a lawyer practising in Helsinki. 2. The Finnish 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 applicant mother is a Kurd from Kirkuk, Iraq, who escaped from Iraq with her husband and two children due to persecution. The applicants claimed that the husband had been threatened by the “Islamic State” for having denounced to the authorities persons who were in possession of firearms. He had subsequently received many death threats, for which reason the family was relocated elsewhere in Northern Iraq. Despite the internal flight, the persecution continued. The family fled first to Turkey, where their persecutors tried to kidnap the children. They then fled to Italy. 5. The applicant mother fell gravely ill after her second pregnancy in 2009. Both of her kidneys were removed and she received a kidney transplant. Due to a lack of proper medication, she was in very poor condition during their escape from Kurdistan and does not even remember being in Italy. 6. The applicants apparently arrived in Finland in July 2015 and sought asylum on 29 July 2015. The applicant mother was immediately admitted to hospital and was thereafter admitted to hospital on a monthly basis for periods of varying length. It appears that her husband has in the meantime been convicted of rape and that she has decided to divorce him. Upon their application for asylum in Finland on 29 July 2015, it was discovered that the applicants had previously been registered in Italy on 11 July 2015. 7. On 2 February 2016 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected the applicants’ application and decided to order their return to Italy. The Service found that, on 31 August 2015, the Finnish authorities had informed the Italian Government about the applicants’ family situation and the scheduled arrival of the applicant mother and her children, and that the Italian authorities had not opposed to receive them. The parents were capable of taking care of their children and removal to Italy was not against the best interest of the children, in whose interest it was to live with their parents. Italy had agreed to comply with the fundamental rights guaranteed by the EU Charter on Fundamental Rights and was to examine the applicants’ asylum application. The applicants had a right to services provided by Italian authorities. In a Dublin transfer decision the substance of the asylum claim is not examined, so the decision regarding the applicants did not deal with the applicant mother’s illness or her factual position as a single mother due to the pre-trial detention of the children’s father. 8. By letter dated 10 February 2016 the applicants appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting also a stay on removal. 9. On 12 February 2016 the Administrative Court decided not to grant a stay on removal. 10. By letters dated 17 February and 8 March 2016 the applicants made their second and third requests for a stay on removal. On unspecified dates the Administrative Court refused these requests. 11. The proceedings before the Administrative Court are still pending. However, a Dublin transfer decision is enforceable, notwithstanding that the case has not been finally determined. 12. The application was lodged with the Court on 11 March 2016. On 15 March 2016 the duty judge of the Court decided to suspend the examination of Rule 39 of the Rules of Court until receipt of information from the respondent Government and to put factual questions to the Finnish Government under Rule 54 § 2 (a), which concerned, inter alia, the guarantees obtained from the Italian authorities in relation to the applicants’ scheduled transfer to Italy. 13. The Finnish Government submitted their reply on 29 March 2016. In their letter, the respondent Government noted that the Italian authorities had informed the Finnish authorities of the guarantees for vulnerable cases, including families with children, by their letters of 8 June 2015 and 15 February 2016. A copy of these circular letters sent by the Dublin Unit of the Italian Ministry of the Interior (Ministero dell’Interno) was attached to the Government’s letter. In these circular letters the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children and provided an updated list of accommodation available to such families. 14. The Finnish Government noted that the Immigration Service would transfer the medical information detailing the special needs of the applicants to the competent authorities in Italy and, accordingly, those needs would be taken care of in such a manner that the applicants would receive any necessary medical care in Italy without interruption. They noted that the Finnish authorities had made sufficient efforts to obtain individual and specific guarantees from the Italian authorities, and that there was no reason to suspect that the applicants would be separated from each other or subjected to any treatment contrary to Article 3 of the Convention upon arrival in Italy. The examination of the applicants’ application by the Court was premature, as no final decision by the relevant domestic courts had yet been made. Accordingly, the Government considered that the applicants’ application should be declared inadmissible by virtue of Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies. 15. On 1 April 2016 the applicants were sent a copy of the Government’s letter for information. 16. On 5 April 2016 the duty judge of the Court decided, under Rule 39, to indicate to the Finnish Government that the applicants should not be transferred to Italy for the duration of the proceedings before the Court. 17. On 22 April 2016 the applicants commented on the information submitted by the Government, maintaining that they had not been informed to date of any individual or specific guarantees concerning their possible removal to Italy. A mere agreement between Finland and Italy to keep families with children together and to arrange accommodation for them could not be regarded as sufficient. The applicants’ situation would be unclear if Italy could give no individual guarantees by the time of the possible removal. According to the applicants, the children’s father had been convicted of rape and sentenced to two years’ imprisonment. The applicant mother was certain that her marriage was over, but acknowledged that the children’s well-being was fully dependent on their father’s presence. Regular family visits to prison had already been arranged for the children. The applicants wished the Court to continue the examination of their case.