FOURTH SECTION

DECISION

Application no . 20048/13 T.H.-A. and Others against Finland

The European Court of Human Rights (Fourth Section), sitting on 21 October 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 20 March 2013,

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 observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

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 an d 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 .

A. The circumstances of the case

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

Account of the events provided by the applicant s

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 ( t h e 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.

Asylum proceedings

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. O n 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.

B. Relevant domestic law

Constitution of Finland

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.

Aliens Act

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 m ember 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 m ember 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.

C. Relevant international materials

27 . The World Health Organisation ’ s ( WHO ) Mental Health Atlas from 2005 provides the following information on the mental health care situation in the Russia n 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 (e ach dispensary provides sectoris ed 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.”

COMPLAINT S

28. The applicants complain ed under Article 3 of the Convention that they would face a real risk of ill-treatment if deported to Russia.

29. They also complained under Articles 6 and 13 of the Convention that they would be deprived of an effective remedy if they were expelled before their case had been decided by the Finnish Supreme Administrative Court and the Court.

THE LAW

A. Complaint under Article 3 of the Convention

30 . The applicant s complained that t he y risked being subjected to treatment contrary to Article 3 of the Convention if removed to Russia .

31 . Article 3 of the Convention reads as follows:

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

32 . The Government noted that the applicants ’ origin could not be verified in a reliable manner but their ethnic background was held plausible by the Immigration Service. Some of the documents mentioned by the applicants were never submitted to the Service and the Service could not assess the authenticity of those documents which were submitted as they were not submitted in original. Moreover, the medical certificates submitted to the Court were not available when the Immigration Service and the Administrative Court took their decisions. However, these certificates were apparently available when the Supreme Administrative Court took its decision. It also appeared that the first applicant had been issued with a Russian passport while staying in Finland as an asylum-seeker in 2012. He had used it to travel from Finland to Lithuania and to other countries. These facts had strengthened the Government ’ s understanding that the domestic authorities were not particularly interested in the applicants and that they were thus not in need of international protection against their country of origin. The authenticity of the first applicant ’ s passport could not be examined by the domestic authorities as the original had not been submitted.

33. The Government observed that the security situation in Ingushetia had calmed down considerably when measured in terms of the number of dead and injured. Most victims had been rebels but some conscripts and civilians had also been killed. The situation in Northern Caucasus remained tense: the violence persisted but its focus was shifting between different areas. However, the Russian Constitution guaranteed citizens the freedom of movement and the freedom to choose their place of residence within its territory. A person could spend 90 days outside his or her locality of registration without registering, after which he or she could register temporarily or permanently by notifying the local authorities. The only prerequisite for registration was an address. Persons coming from the North Caucasian republics had not had any particular difficulties registering in other parts of Russia. Despite the disturbances in Russia, it could not be considered as so unsafe that the applicants could not return. This situation had not changed since the delivery of the domestic decisions.

34. The Government maintained that the applicants had not provided any evidence to warrant considering that they might be suspected of affiliation with the rebels in Ingushetia and risk treatment in breach of Article 3 of the Convention. They had not been religiously, politically or socially active, and were therefore of no particular interest to the authorities. Medical treatment for the first applicant ’ s mental health problems was available in Russia. In any event, as required by EU law, the police took into account the person ’ s health at the time of the deportation and, if necessary, would postpone its enforcement. The applicants would therefore not face any risk of being subjected to torture or other inhuman or degrading treatment in breach of Article 3 of the Convention if expelled to the Russian Federation.

35. The applicants claimed that the country information supported that the fear of persecution was subjectively and objectively well-reasoned. The security situation in Russia was now far more serious than previously. The authorities were corrupt and unable to provide sufficient protection. The applicants would be in a vulnerable position by the very fact that they were returning to the country. There was a risk that at least the first applicant would be detained immediately upon return.

36. As to their personal situation, the applicants argued that the first applicant had been able to establish that there were serious reasons to believe that he would be of sufficient interest to the authorities to warrant his detention upon return. There was a valid search warrant against him which the Government had not proved to be a fake. Moreover, he had been tortured by sleep deprivation and by the so-called “hooding” method. The first applicant ’ s ill-treatment was an evident and proven fact supported by medical statements. The overall credibility of evidence had not been questioned by the Finnish authorities but merely the likelihood of the applicants ’ future persecution after deportation. In addition, the first applicant ’ s brother-in-law had been shot dead in March 2013, and this fact had drawn the authorities ’ attention all the more to the family as a whole.

37. The applicants argued that the identity of the second applicant was never put into question. The Finnish police never started any investigation in respect of the applicants ’ origin. The fact that the first applicant was able to acquire a Russian passport should not weaken his credibility in the asylum assessment. In any event, this passport was a fake. The first applicant had thus not turned to the authorities in his home country to obtain a passport. The fact that he had travelled with a fake passport to Estonia and Lithuania could be explained by his delusional state of mind as he had been irrational and disproportionately feared deportation. He had been hospitalised in Lithuania and could return to Finland only with the assistance of his friend. The first applicant had been diagnosed as suffering from psychotic delusional disorder, depression and symptoms of post ‑ traumatic stress disorder. He had needed psychological help and he had received medication for his mental health problems. He was still in need of medication and regular therapy at the Centre for Torture Survivors in Finland ( Kidutettujen kuntoutuskeskus , Centret för rehabilitering av tortyroffer ). The first applicant ’ s mental health problems were so severe that the execution of his deportation order would present a real risk of treatment in violation of Article 3 of the Convention. The second applicant also suffered from post-traumatic stress disorder. There was no evidence of sufficient availability of proper mental health care for the applicants in Russia.

38 . 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 Ãœner 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).

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

40 . As argued by the Government, while the situation in Northern Caucasus is still tense, the Court does not find the general human rights situation in Russia to be of such a nature as to show, on its own, that there would be a violation of the Convention if the applicants were to return to that country. The Court has therefore to establish whether the applicants ’ personal situation is such that their return to Russia would contravene Article 3 of the Convention.

41 . 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.

42 . The Court observes, from the outset, that the domestic authorities and courts have questioned the applicants ’ credibility and pointed to certain inconsistencies in their story. The Immigration 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. The Service also found it odd that the first applicant could not state any reason why he might be wanted by the FSB. There were also discrepancies in the applicants ’ stories concerning the searches of their domicile and the disappearance of their passports . The Administrative Court found the applicants ’ story in principle credible . It did , however, consider that the applicants would not be of special interest to the FSB for reasons explained by the court (see paragraph 15 above).

43 . 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.

44 . As to the applicants ’ personal circumstances, the Court therefore shares the Administrative Court ’ s and the Government ’ s view that the first applicant has not shown any reason or submitted any evidence capable of showing why the Russian authorities would have a particular interest in him. In fact, the Immigration Service noted that the Russian authorities acted properly in releasing him from detention when there was no evidence against him. The Immigration Service did not find any evidence of his ill ‑ treatment, nor is there any evidence in the case file to that effect. According to the Service, the first applicant was treated in a correct manner by the Russian local authorities.

45. The Court further notes that there is no evidence in the case file about any search warrant against the first applicant. Also, the relevance of the passport acquired in 2012 remains unclear because its authenticity could not be examined by the domestic authorities as the original was not submitted to them. Moreover, it is also relevant that the applicants managed to leave the country without problems and that their families have not been harassed since their departure. As to the alleged killing of the first applicant ’ s brother-in-law in March 2013, this piece of information was apparently never even communicated to the Supreme Administrative Court where the applicants ’ case was pending at the time. The applicants themselves also confirmed that they were not politically or religiously active in their home country. In addition, the Immigration Service and the Administrative Court considered that nothing in t he applicants ’ or their family ’ s background gave reasons to suspect that they would be of special interest to the FSB.

46 . As to the applicants ’ health , the Court notes that, according to country information, medical treatment for mental illnesses both at in ‑ patient and out-patient level is available in Russia. A variety of medicines for mental illnesses is also available . It must therefore be considered that the applicants have access to treatment for psychotic delusional disorder, depression and symptoms of post-traumatic stress disorder in Russia (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 applicants at risk of treatment contrary to Article 3 of the Convention if removed to Russia.

47 . The Court further notes that the applicants implied that the execution of the first applicant ’ s removal from Finland w ould already in itself present a real risk of treatment contrary to Article 3 of the Convention due to the severity of his mental health problems. The Court acknowledges that a deportee ’ s severe mental health problems at the moment of the enforcement of a deportation order may have an effect on its enforcement. However, the Government have been able to show that in Finland the police have to take into account an applicant ’ s state of health at the time of the removal and, if necessary, to postpone its enforcement. This practice was demonstrated in the context of the case S.B. v. Finland (dec .), no. 17200/11, § 38, 24 June 2014. 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, will not continue in the future (see paragraph 26 above). The Court is therefore assured that the domestic law provides sufficient safeguards to conclude that the first applicant ’ s mental health condition would be taken into account at the time of the removal and that the removal would be postponed, if the first applicant ’ s health so required.

48 . Having regard to all of the above, the Court concludes that there are no substantial grounds for believing that the applicants would be removed from Finland in a manner contrary to the Convention or that they would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if deported to the Russia n Federation 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.

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

B. Remainder of the application

50. T he applicant s also complained under Articles 6 and 13 of the Convention that they would be deprived of an effective remedy if they were expelled before their case had been decided by the Finnish Supreme Administrative Court and the Court.

51. In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that i t do es 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, by a majority,

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President