FOURTH SECTION
Application no. 72861/11
M.M. and Others
against Finland
lodged on 25 November 2011
STATEMENT OF FACTS
THE FACTS
The applicants, M.M., his wife and a minor child, are Somali nationals. They are represented before the Court by Ms Liisa Välimäki, a lawyer of the Refugee Advice Centre in Helsinki.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Account of the events by the applicants prior to their first asylum proceedings in Finland
The applicants are a Somali family. The first applicant and his wife both arrived in Italy in 2008 where they married 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 with high blood pressure and diabetes.
2. First domestic asylum proceedings
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.
On 30 March 2010 the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) upheld the Immigration Service’s decision.
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 to the Court information about the reception of the applicants and of the progress of the examination of their asylum claim in Italy. No such information was ever received.
On 17 May 2010 the applicants were removed from Finland to Italy.
On 20 August 2010 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen) refused the applicants leave to appeal.
3. Account of the events by the applicants after their removal to Italy
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 found a place in a local church where they could to spend the nights during 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 also sleep on the streets.
Every day they struggled to find food and diapers 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 stayed in the Netherlands for five months and in Sweden for four months.
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 when 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.
4. Second domestic asylum proceedings
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 the second baby on 20 February 2012 and she suffered from diabetes.
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 that required examination of their asylum claim on the merits. The applicants could obtain medical care in Italy if they were correctly registered in the local health care system. Their removal did not put their health in danger. This decision was served to the applicants on 14 November 2011.
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. Their case is still pending before the Administrative Court.
COMPLAINTS
The applicants complain under Article 3 of the Convention about the very poor conditions for asylum seekers in Italy in general. They claim that they have been basically living on the streets and have not received any medical care or other care for their small baby. They refer to the case M.S.S. v. Belgium and Greece [GC], no. 30696/09, 21 January 2011, arguing that the conditions in Italy are as poor as those in Greece.
The applicants complain under Article 13 of the Convention that they should have an effective remedy to have their case dealt with by the Finnish authorities until a final decision has been reached in their case.
QUESTIONS TO THE PARTIES
1. In the light of the applicants’ claims and the documents which have been submitted, would they face a risk of being subjected to treatment in breach of Article 3 of the Convention if their removal order to Italy were enforced?
2. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 3 of the Convention, as required by Article 13 of the Convention (see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 67, ECHR 2007‑II; and Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 116, 22 September 2009)?
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