FIRST SECTION

DECISION

Application no . 32275/15 M.A.-M. and Others against Finland

The European Court of Human Rights (First Section), sitting on 4 October 2016 as a Committee composed of:

Kristina Pardalos, President, Pauliine Koskelo, Tim Eicke, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 2 July 2015,

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 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, Mr M.A.-M. (“the first applicant”), his wife (“the second applicant”) and two minor children, are Iraqi nationals who were born in 1986, 1996 and 2015 respectively (“the applicants”). They were represented before the Court by Ms Anna Smallenburg, 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.

4. The couple arrived in Finland from Iraq via Italy on 16 February 2015 and sought asylum on the same day. The second applicant was already pregnant at the time. On 23 March 2015 the Finnish Immigration Service ( Maahanmuuttovirasto, Migrationsverket ) contacted the Italian authorities and asked them to receive the applicants. T he Italian authorities agreed to receive the first applicant on 28 April 2015 and did not oppose receiving the second applicant by the end of the time-limit of two months, expiring on 23 May 2015. On 27 May 2015 the Italian authorities were further informed that, if the second applicant gave birth before the removal, the Finnish Government would request guarantees from the Italian Government that the family would be kept together and that the family would be placed in appropriate accommodation. The couple ’ s twins were born prematurely in Finland on 25 May 2015 but this information was submitted to the Finnish Immigration Service only on 3 June 2015.

5. On the same date, the Immigration Service rejected the applicants ’ asylum application and decided to order their removal back to Italy. This decision did not take into account the new information submitted about the birth of the twins. In its reasoning, the Immigration Service stated that the second applicant was in good medical condition and that she could be removed despite her pregnancy. According to the post ‑ Tarakhel practice which had been agreed upon between the Finnish and Italian authorities, individual guarantees would be requested by the Finnish authorities 15 days before the planned removal. The applicants ’ removal would therefore comply with the Tarakhel judgment. This decision was served on the applicants on 16 June 2015.

6. By letter dated 18 June 2015 the applicants appealed to the Administrative Court ( hallinto-oikeus, förvaltningsdomstolen) , requesting also a stay on removal.

7. On 25 June 2015 the Administrative Court decided not to grant a stay on removal.

8. On 29 October 2015 the Administrative Court rejected the applicants ’ appeal. It found that the Italian authorities had agreed to receive the first applicant on 28 April 2015 and had not opposed receiving his wife by 23 May 2015. The Finnish and Italian Governments had agreed on arrangements according to which families with children were to be kept together and placed in appropriate accommodation. Before the removal, the Finnish authorities would inform the Italian authorities of the special needs of the family, including their need for medical assistance. The court found that the medical condition of the twins was not such as they could not receive appropriate treatment in Italy. On these grounds, and on those already expressed by the Immigration Service, the court held that the applicants would not be subject to a risk of treatment in violation of Article 3 of the Convention.

9. By letter dated 27 November 2015 the applicants appealed further to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen) , requesting again a stay on removal.

10. On 18 May 2016 the Supreme Administrative Court refused the applicants leave to appeal.

B. Procedure under Rule 39

11. The application was lodged with the Court on 2 July 2015. On the same day, the duty judge of the Court decided to apply Rule 39 of the Rules of Court for the duration of the proceedings before the Court 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.

12. The Finnish Government submitted their reply on 10 July 2015. 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 letter of 8 June 2015. In this circular letter, the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children and provided a list of accommodation available to such families.

13. Furthermore, 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 their arrival in Italy. The examination of the applicants ’ application by the Court was premature as no final decision had yet been made by the relevant domestic courts. 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.

14. On 3 August 2015 the applicants were sent a copy of the Government ’ s letter for information.

15. On 12 October 2015 the applicants commented on the information submitted by the Government. They argued that 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. They claimed that Italy was not capable of giving such individual guarantees as demanded by the Tarakhel judgment. The applicants ’ situation would be unclear if Italy could give no individual guarantees by the time of the possible removal. The applicants wished the Court to continue the examination of their case.

16. On 3 November 2015 the Government reiterated their previous observations and considered that, even after the delivery of the Administrative Court ’ s decision of 29 October 2015, the applicants had still not exhausted all effective domestic remedies since it was still open for them to request leave to appeal from the Supreme Administrative Court.

17. On 19 February 2016 the applicants commented on the Government ’ s letter of 3 November 2015, indicating that they had sought leave to appeal from the Supreme Administrative Court. They continued to claim that they had not yet been informed about any individual and specific guarantees concerning their possible removal to Italy. They also submitted the latest medical certificates for the twin babies.

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 applicants were in a particularly vulnerable situation, in particular as the twins had been born prematurely. The Finnish authorities never informed the Italian authorities about the applicants ’ vulnerable situation and their special needs. The Italian authorities never explicitly agreed to receive the second applicant and children, this decision being made by default. There were no such guarantees in place as required by the Court ’ s judgment in Tarakhel v. Switzerland .

19. Moreover, 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

20. The applicants complained that, if they were transferred to Italy, they would be exposed to a risk of treatment contrary to Article 3 of the Convention. Article 3 of the Convention reads as follows:

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

21. 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.

22. The Court considers that the applicants ’ situation as a family with minor children is one of the relevant factors in making this assessment. The material date for 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).

23. 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 family ’ s situation as asylum-seekers 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. As to the applicants ’ personal situation, they are a family with 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.

27. In this context, the Court notes that on 23 March and 27 May 2015 respectively the Italian Government were duly informed by the Finnish authorities about the applicants ’ family situation. The Court is confident that, when the applicants ’ removal takes 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 appropriate to the age of the children and that the family will be kept together (see Tarakhel , cited above, and the Italian authorities ’ assurances provided in the letter of 8 June 2015 (see paragraph 12 above)).

28. The Court notes the applicants ’ concern that no individual or specific guarantees have yet been given by the Italian authorities but, in the absence of any concrete indication in the case file, does not find it demonstrated that the applicants would be unable to obtain such guarantees before their removal to Italy. Furthermore, the Court considers that the applicants have not submitted any evidence showing 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.

29. 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.

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

B. Complaint under Article 13 of the Convention

31. The applicants also 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.

32. 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 27 October 2016 .

             Renata Degener Kristina Pardalos              Deputy Registrar President