FIRST SECTION

DECISION

Application no . 13630/16 M.R. and O thers against Finland

The European Court of Human Rights (First Section), sitting on 24 May 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska , President, Ledi Bianku , Kristina Pardalos , Paul Mahoney, Aleš Pejchal , Armen Harutyunyan , Pauliine Koskelo, judges, and Abel Campos, Section Registrar ,

Having regard to the above application lodged on 11 March 2016,

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 factual information submitted by the respondent Government,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms M.R. and her two minor children, are Iraqi nationals who were born in 1 980, 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.

A. The circumstances of the case

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

The applicants ’ account of their circumstances

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.

Asylum proceedings in Finland

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. T he 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.

B. Procedure under Rule 39

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.

COMPLAINTS

18. The applicants complained that their removal to Italy would create a real risk of their being subjected to treatment contrary to Article 3 of the Convention. The applicant mother and her minor children were in a vulnerable situation. She was a single mother and seriously ill, needing regular medication and hospital treatment. The Finnish authorities never informed the Italian authorities about the applicants ’ vulnerable situation and the Italian authorities never agreed to receive the applicants, this decision being made by default. There were no such guarantees as required by the Court ’ s judgment in Tarakhel v. Switzerland .

19. The applicants also complained under Article 8 of the Convention that their removal would break the family bond with the children ’ s father before his situation was fully examined in Finland.

20. Lastly, they complained under Article 13 of the Convention that they had no effective remedy as their removal order could be immediately enforced and they would therefore be unable to take full advantage of their right to appeal.

THE LAW

A. Complaint under Article 3 of the Convention

21. The applicants complained that, if the applicant mother and her children were transferred to Italy, they would be exposed to a risk of treatment contrary to Article 3 of the Convention owing to the difficult living conditions of asylum-seekers in Italy. Article 3 of the Convention reads as follows:

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

22. The Court reiterates the relevant principles of Article 3 of the Convention, as set out most recently in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 28-48 and §§ 101-104, ECHR 2014 (extracts), which include the need for the ill ‑ treatment to attain a minimum level of severity to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim.

23. The Court considers that the applicants ’ situation as a single mother and minor children is one of the relevant factors in making this assessment. The material date for making this assessment is the actual date of expulsion. However, if an applicant has not yet been removed when the Court examines the case, the relevant time for assessing the existence of the risk of treatment contrary to Article 3 will be that of the proceedings before the Court (see Chahal v. the United Kingdom , 15 November 1996, § 86, Reports of Judgments and Decisions 1996 ‑ V; Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008; M.A. v. Switzerland , no. 52589/13, § 54, 18 November 2014; and Khamrakulov v. Russia , no. 68894/13, § 64, 16 April 2015).

24. The applicants are to be considered as asylum-seekers in Italy. It thus has to be determined whether the situation in which the applicants are likely to find themselves in Italy can be regarded as incompatible with Article 3, taking into account the applicant mother ’ s situation as an asylum ‑ seeking single mother with young children and serious health problems and, as such, belonging to a particularly underprivileged and vulnerable population group in need of special protection (see Tarakhel , cited above, § 97; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 251, ECHR 2011).

25. The Court reiterates that the situation in Italy for asylum ‑ seekers cannot be compared to the situation in Greece at the time of the M.S.S. v. Belgium and Greece judgment (cited above) and that the structure and overall situation of the reception arrangements in Italy cannot in themselves act as a bar to all removals of asylum-seekers to that country (see Tarakhel , cited above, §§ 114-115).

26. As to the applicants ’ personal situation, they are a single mother and her two minor children. Their situation is thus similar to that of the applicants in Tarakhel (cited above), who were a family with six minor children. However, unlike the situation in Tarakhel , the Finnish authorities – as regards transfers to Italy under the Dublin Regulation – decide in consultation with the Italian authorities how and when the transfer of an asylum-seeker to the competent Italian authorities will take place. In particular, where a family with children is involved, prior notice of transfer is given to the Italian authorities, thus allowing the latter to identify where adequate accommodation is available.

28. In this context, the Court notes that on 31 August 2015 the Italian Government were duly informed by the Finnish authorities about the applicants ’ family situation and the scheduled arrival of the applicant mother and her children. The Court is confident that, when the applicants ’ removal will take place, the Finnish authorities will duly inform the Italian authorities of the applicants ’ removal, in order for the applicants to be taken charge of, upon arrival, in a manner adapted to the age of the children and that the family would be kept together (see Tarakhel , cited above, and the Italian authorities ’ assurances provided for in the letter of 8 June 2015 and updated on 15 February 2016 (see paragraph 13 above)).

29. The Court notes the applicants ’ concern that the number of places earmarked will be insufficient but, in the absence of any concrete indication in the case file, does not find it demonstrated that the applicant mother and her children will be unable to obtain such a place when they arrive in Italy. Furthermore, the Court considers that the applicants have not demonstrated that their future prospects, if returned to Italy, whether looked at from a material, physical or psychological perspective, disclose a sufficiently real and imminent risk of hardship that is severe enough to fall within the scope of Article 3.

30. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore inadmissible pursuant to Article 35 § 4.

31. Consequently, the application of Rule 39 of the Rules of Court comes to an end.

B. The remainder of the application

32. The applicants also complained under Article 8 of the Convention that their removal would break the family bond with the children ’ s father before his situation was fully examined in Finland. They complained under Article 13 of the Convention that they had no effective remedy, as their removal order could be immediately enforced and they would therefore be unable to take full advantage of their right to appeal.

33. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must also be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 16 June 2016 .

Abel Campos Mirjana Lazarova Trajkovska Registrar President