FOURTH SECTION

DECISION

Application no . 72861/11 M.M. and OTHERS against Finland

The European Court of Human Rights (Fourth Section), sitting on 3 September 2013 as a Chamber composed of:

Ineta Ziemele, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Krzysztof Wojtyczek, Faris Vehabović, judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 25 November 2011,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . The applicants, Mr M.M., his wife and a minor child, are Somali nationals, who were born in 1988, 1979 and 2010 respectively. They were represented before the Court by Ms Liisa Välimäki, a lawyer at the Refugee Advice Centre in Helsinki.

2 . The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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 the events prior to their first asylum proceedings in Finland

4 . The applicants are a Somali family. The first applicant and his wife arrived in Italy in 2008 and married there in May 2009. The wife became pregnant and was ill but she did not receive any medical care in Italy. Therefore they travelled to Finland where she gave birth to their first child on 25 February 2010. In Finland she was diagnosed as suffering from high blood pressure and diabetes.

First domestic asylum proceedings

5 . The applicants sought asylum in Finland for the first time on 7 September 2009. On 26 November 2009 the Finnish Immigration Service ( Maahanmuuttovirasto, Migrationsverket ) rejected their application and decided to order their removal back to Italy on the basis of the Dublin Regulation.

6 . On 30 March 2010 the Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ) upheld the Immigration Service ’ s decision.

7 . On 20 April 2010 the applicants lodged an application with the Court, requesting that Rule 39 of the Rules of Court be applied. On the same date the Court refused their request. The Court, however, asked the Italian Government to provide the Court with information about the reception of the applicants and the progress of the examination of their asylum claim in Italy. No such information was ever received.

8 . On 17 May 2010 the applicants were removed from Finland to Italy.

9 . On 20 August 2010 the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltnings domstolen ) refused the applicants leave to appeal.

The applicants ’ account of the events after their removal to Italy

10 . On 17 May 2010 the family was returned to Italy on the basis of the Dublin Regulation. The applicants claimed that in Italy there was nobody to receive them, or to give them any assistance, and that they were left to wander the streets. Finally the applicant mother and the three-month-old baby had found a place in a local church where they could spend the night for the first five months. During the day-time they had to leave the church and to stay on the streets. There was no place for the applicant father in the church, so he had to sleep on the streets.

11 . Every day they struggled to find food and nappies for the baby. The applicant mother did not receive any medical care for her illnesses. When she became pregnant again, they decided to return to Finland as no medical care had been available for them in Italy. Apparently, before returning to Finland, they spent five months in the Netherlands and four months in Sweden.

12 . The applicants claimed that the conditions in Italy were so bad that their lives and the life of their unborn baby were at risk, especially taking into account that the applicant mother suffered from diabetes which required constant medication and care. The conditions in Italy were so poor that they did not fulfil the basic requirements of human living, namely shelter, food, water and medication.

Second domestic asylum proceedings

13 . On 6 September 2011 the applicants arrived in Finland for the second time and sought asylum on the same day. Their representative requested the Immigration Service to examine their asylum application on the merits on the basis of their vulnerable position. The applicant mother was due to have her second child on 20 February 2012 and she suffered from diabetes.

14 . On 24 October 2011 the Immigration Service rejected their application and decided to order their removal back to Italy on the basis of the Dublin Regulation. It found that Italy had, as a Member State of the European Union, accepted the Dublin Regulation and consequently the responsibility to receive asylum seekers. Even though Italy had not confirmed that it agreed to receive the applicants, the failure to reply was considered as a tacit agreement. The Immigration Service noted that, to their knowledge, there were seven reception centres in Italy dedicated entirely or partly to minors or other vulnerable persons. Furthermore, the Service did not consider the applicants to be in such a vulnerable position as to require examination of their asylum claim on the merits. The applicants could obtain medical care in Italy if they were correctly registered with the local health care system. Their removal would not put their health in danger. This decision was served to the applicants on 14 November 2011.

15 . On 15 November 2011 the applicants appealed to the Administrative Court, requesting a stay on removal which was not granted. They made new requests on 23 November and 8 December 2011 which were also rejected.

16 . On 25 November 2011 the applicants lodged an application with the Court, requesting that Rule 39 of the Rules of Court be applied. On 14 December 2011 Rule 39 was applied and the application was communicated to the Government on the same date.

17 . On 23 February 2012 the second child was born to the family.

18 . On 25 April 2012 the Administrative Court quashed the decision of the Immigration Service and referred the case back to it for an examination on the merits. It found that the applicant family had two children born in 2010 and 2012 respectively and that the family was in a vulnerable position vis-à-vis Italy. Their removal to Italy might put the family at risk of inhuman treatment, in particular when taking into account the best interest of the children.

19 . On 6 July 2012 the Immigration Service granted the applicants continuous residence permits for four years. This decision was served to the applicants on 13 November 2012.

COMPLAINTS

20 . The applicants complained that their removal to Italy would violate Article 3 of the Convention due to the very poor conditions for asylum seekers in Italy in general. They referred to the case M.S.S. v. Belgium and Greece [GC], no. 30696/09, 21 January 2011, arguing that the conditions in Italy were as poor as those in Greece.

21 . The applicants complained under Article 13 of the Convention that they should have had an effective remedy to have their case dealt with by the Finnish authorities until a final decision had been reached in their case.

THE LAW

22 . The applicants complained under Articles 3 and 13 of the Convention that their removal to Italy would subject them to a risk of inhuman and degrading treatment and contended that they should have been able to stay in Finland until a final decision had been reached in their case.

23 . Article 3 of the Convention reads as follows:

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

24 . Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

25 . On 4 December 2012 the Government informed the Court that, on 6 July 2012, the Finnish Immigration Service had granted the applicants residence permits valid for a continuous period of four years. Consequently, the Government suggested that the circumstances allowed the Court to reach the conclusion that the matter had been resolved, thereby justifying the discontinuation of the examination of the application. The Government invited the Court to strike the application out of its list of cases and to lift the interim measure indicated on 14 December 2011.

26 . The applicants did not submit any comments within the set time ‑ limit.

27 . Article 37 § 1 of the Convention provides:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

28 . The Court notes that the domestic proceedings have ended and that the applicants have been granted residence permits valid for a continuous period of four years. They are thus no longer subject to an expulsion order.

29 . The Court observes in addition that the applicants have not commented on the Government ’ s request to strike the case out. Their silence is to be construed as indicating their satisfaction that all issues giving rise to their application have been adequately addressed.

30 . In these circumstances, and having regard to Article 37 § 1 (b) of the Convention, the Court is of the opinion that the matter giving rise to the complaints against Finland under Articles 3 and 13 of the Convention can now be considered to be “resolved” (see F.S. and Others v. Finland (dec.), no. 57264/09, 13 December 2011 ) . Therefore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of this part of the case.

31 . In view of the above, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and to strike the case out of the list of cases.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Françoise Elens-Passos Ineta Ziemele Registrar President