T.H.-A. AND OTHERS v. FINLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The first applicant, Mr T.H.-A., is a Russian national who was born in 1968. The second and third applicants are his wife and child who are also Russian nationals and born in 1984 and 2012 respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). The applicants 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 couple and their child born in Finland on 1 July 2012. They are Russian citizens originating from the Ingushetia region and are Muslims by religion. The first applicant had lived previously in Chechnya but fled from the war in the mid-1990s back to Ingushetia. The second applicant, his wife, was born in North-Ossetia from where their family fled in 1992 to Chechnya and from there to Ingushetia in 1995. Both applicants claim that they have not been politically or religiously active and do not belong to any group. 5. The first applicant’s problems with the authorities started late in 2007. He was arrested, on the basis of witness testimony, by the local police in December 2007, suspected of the murder of a police officer. After a few days in detention, the court ordered his release as the witness had retracted his statement. He was not, however, released immediately but only after approximately 10 days when his brother paid money to the police. The first applicant claimed that he had lost track of time while in detention as he was deprived of sleep. The interrogations went on continuously and if he fell asleep he was immediately awakened. A bag was put over his head to humiliate him and he was verbally humiliated as well. The first applicant claimed that he was not, however, otherwise physically ill-treated. He assumed that as he was relatively wealthy and well-known in his community, the police did not dare to beat him as it would have become known in the community. 6. The first applicant heard from the prosecutor that the witness testimony against him had been fabricated and ordered by the FSB (the Federal Security Service of the Russian Federation) but the applicant did not know why. His legal counsel advised him to leave as, once targeted by the FSB, he would never be left alone. The first applicant did not want to leave as he did not consider himself guilty of any crime. 7. After his release, security troops of some sort (silovikis) searched his house. The first applicant escaped when he saw the military vehicles approaching his house. He went to live in his aunt’s house some 10 minutes’ drive from his house, where the applicants stayed for almost one year (in 2008) until they fled to Finland. The house belonging to him and his brother was searched at least three times and the applicants’ passports were taken. The first applicant was never home when the searches were made but on one occasion the second applicant was present. She and the other family members, who were at home at the time, were ordered to lie down on their stomachs on the ground for hours while the men in military uniform, who did not specify who they were, waited for the first applicant to arrive. The men shot the applicants’ kitten and stated that the applicants would soon be treated similarly. A gun was held to their heads and they were verbally intimidated. Finally the men tired of waiting and left. 8. The FSB left the first applicant at least one written summons to present himself for questioning about his participation in group meetings and demonstrations. The first applicant stated that he had not participated in those meetings mentioned in the summons but that he only had participated in such meetings 2 to 3 years before. His brother went to the FSB with a lawyer in 2008 to tell them that the first applicant had left and would not be returning. The applicants maintained that they did not know why the FSB was after the first applicant. He assumed that he was on their blacklist for some reason but other people were also wanted by the FSB without any real reason. 9. The second applicant stated that her brother had also been taken by unspecified authorities in September 2007 without notice and held for four days but then released. She did not know the reason. Her cousin’s son had been reported missing since 2008. Her sister’s husband had apparently also been killed after the applicants arrived in Finland. 10. Both applicants also spoke in their asylum interview more generally about the human rights problems in Ingushetia, such as house searches by masked men in military uniforms who always came in the morning, and unresolved abductions and killings. Some of the victims of these incidents were distant relatives or friends of the applicants. 11. After the applicants’ arrival in Finland, the second applicant had suffered from several psychosomatic symptoms which were diagnosed as post-traumatic stress disorder. She has been treated with antidepressants which apparently have not improved her health. She submitted medical certificates to the domestic courts. 12. On 2 February 2009 the applicants sought asylum in Finland. 13. On 12 July 2011 the Finnish Immigration Service (Maahanmuutto-virasto, Migrationsverket) rejected their applications and decided to order their expulsion back to the Russian Federation. The Service did not consider it credible that the FSB could have been looking for the first applicant and failed to find him when he was still in Ingushetia and residing at his aunt’s house only 10 minutes’ drive from his own home. It also found it odd that the first applicant could not state any reason why he might be wanted by the FSB. Furthermore, the Service noted that the Ingushetian authorities had acted properly when releasing him from detention when there was no evidence against him and that they had not ill-treated him. According to the Service, the first applicant was treated in a correct manner by the local Russian authorities. They also noted discrepancies, mostly in timing, in the applicants’ stories concerning the searches of their home and the disappearance of their passports. Also, the applicants managed to leave the country without problems and their families had not been harassed after their departure. As the applicants had also themselves confirmed that they had not been politically or religiously active in their home country, the Service did not find it likely that they would be of any interest to the Russian authorities. 14. On an unspecified date the applicants appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), also requesting an oral hearing to be held. 15. On 20 December 2012 the Administrative Court rejected both the appeal and the request for an oral hearing, considering the latter unnecessary as it found the applicants’ story in principle credible and thus no additional information could be obtained by organising an oral hearing. However, it considered that nothing in the applicants’ or in their family’s background, gave reasons to suspect that they would be of special interest to the FSB. It also noted that, according to the country reports, it was possible that the first applicant might be targeted only because of the previous suspicion of criminal activity. However, it did not consider that to be enough to amount to a real risk of his ill-treatment upon expulsion. Furthermore, the Administrative Court noted that the first applicant had obtained a driving licence through his brother during his absence from Russia, thus it was unlikely that the authorities would persecute him. The court noted that the general security and human rights situation in Ingushetia was relatively poor but that it was not sufficient in itself to amount to a real risk of ill-treatment of the applicants. It also noted that mental health care was available in Ingushetia for the second applicant. 16. By letter dated 12 January 2013 the applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting also an interim order to stay their expulsion for the duration of the proceedings. 17. On 20 March 2013 the applicants’ legal counsel was informed that no interim order was granted by the Supreme Administrative Court. 18. On 13 January 2014 the Supreme Administrative Court refused the applicants leave to appeal. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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 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. 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.”