FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 10941/10
by Aval SHAKOR and 48 other applications
against Finland
The European Court of Human Rights (Fourth Section), sitting on 28 June 2011 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano, judges
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 24 February 2010 and the further 48 applications lodged on various dates in 2009 and 2010,
Having regard to the interim measures indicated in these cases to the respondent Government under Rule 39 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Aval Shakor, is an Afghan national who was born in 1990 and lives in Helsinki. He was represented before the Court by Ms Katariina Bargum, a lawyer practising in Helsinki.
A. The circumstances of Mr Shakor’s case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant left Afghanistan where he claimed to have been subjected to persecution, kidnapping, assault and torture by the Taliban. He first arrived in Greece but allegedly returned to his home country in May 2009 due to the asylum problems in Greece. He fled Afghanistan again and allegedly travelled this time through Iran and the Russian Federation to Finland. He claims to have arrived in Finland on 16 September 2009 by ferry from Sweden. He sought asylum two days later.
On 18 September 2009 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) noted, after a Eurodac search, that the applicant had been registered in Greece for illegal entry on 19 September 2008.
On 14 October 2009 the Immigration Service requested the Greek authorities to take the applicant back by virtue of Article 10 § 2 of the Dublin Regulation. On 30 December 2009 the Immigration Service sent a reminder to the Greek authorities asking for a reply within four days. No reply was received from the Greek authorities to either request.
On 28 January 2010 the Finnish Immigration Service dismissed the applicant’s asylum claim without examining its merits and ordered his removal to Greece relying on the Dublin Regulation. It stated that, in the absence of any travel documents, it was not possible to verify the applicant’s account about having returned to Afghanistan before coming to Finland. It was therefore for the Greek authorities to examine his allegations. Moreover, the Greek authorities had confirmed by a general letter of 18 January 2007 that persons in the applicant’s situation had access to asylum proceedings in Greece. Taking into account all relevant circumstances, the Immigration Service considered that the applicant’s removal to Greece was not in breach of Article 3 of the Convention or section 9 § 4 of the Finnish Constitution, nor was he at risk of refoulement contrary to section 147 of the Aliens Act.
On 10 February 2010 this decision was served on the applicant in his native language. It was directly enforceable unless the Administrative Court ruled otherwise.
On an unspecified date the applicant appealed against the above decision to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting a stay on removal. On 15 February 2010 the Administrative Court decided not to grant a stay on removal.
On 24 February 2010 the applicant lodged an application with this Court, along with a request to stay his removal to Greece. He relied on Articles 3 and 13 of the Convention, claiming, inter alia, that he would not be given an opportunity to institute proper asylum proceedings in Greece and that he would risk refoulement to Afghanistan where his life would be at risk. On the same date the President of the Section granted the above request, indicating to the Government of Finland, under Rule 39 of the Rules of Court, that the applicant should not be removed to Greece until further notice.
On 11 June 2010 the Administrative Court rejected the applicant’s appeal, upholding the Immigration Service’s decision. Having regard to the reasons given by the Immigration Service and the relevant circumstances as a whole, the court found no reason to prevent the applicant’s removal to Greece. It also noted the Strasbourg Court’s interim measure and found that there was no reason to grant a stay on the applicant’s removal.
It is not known whether the applicant has appealed against the above decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen).
B. Rule 39 indications in respect of other applicants
In the course of the Court’s consideration of this case and other cases involving applicants who lodged applications challenging their return to Greece under the Dublin Regulation, the President of the Section has applied Rule 39 in 48 other cases against Finland. Those applications are set out in the annex to this decision.
C. Subsequent developments
On 11 May 2011 the Agent of the Government sent the following letter to the Court:
“With reference to your Court’s judgment of 21 January 2011 in the case of M.S.S. v. Greece and Belgium (no. 30696/09), I have the honour, on behalf of the Government of Finland, to submit the following information to your Court.
New developments
The Government wishes to inform your Court that the Finnish Immigration Service has decided to examine the merits of the following cases in which your Court has previously granted the applicants an interim measure to the effect that their removal to Greece is prohibited until further notice. These cases are:
[list of the 57 cases]
The aforementioned cases are either currently pending before the Finnish Immigration Service or their merits have already been examined by it.
In this connection, the Government notes that as regards the forthcoming and already existing decisions by the Immigration Service, the applicants may, if they so wish, appeal against those decisions of the Immigration Service to the Administrative Court, and then further, through leave-to-appeal, to the Supreme Administrative Court.
Moreover, the Government observes that, should the applicants wish to do so, they may also lodge a new request for an interim measure with your Court.
Accordingly, the Government requests your Court to reconsider lifting the interim measures it has granted to the applicants in the cases mentioned above.
In this connection, the Government recalls that, at any rate, the applicants have not yet exhausted all domestic remedies available to them, as required by Article 35 § 1 of the Convention and that, therefore, their actual application, if a decision as to its admissibility will be at stake before your Court, should be rejected for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention.”
On 23 May 2011 the Section Registrar sent the Government’s letter of 11 May 2011 for information to Mr Shakor and the 48 other applicants.
Before receiving the Government’s letter of 11 May 2011, the Court had already lifted Rule 39 in eight of the cases indicated in the Government’s list.
In response to the Section Registrar’s inquiry concerning the situation of failed asylum seekers from Somalia, the Agent of the Government confirmed on 27 June 2011 that the Finnish Immigration Service granted asylum seekers originating from Mogadishu a residence permit on grounds of subsidiary protection, and they would not therefore be returned to Mogadishu.
COMPLAINTS
The applicant, Mr Shakor, complained under Article 3 of the Convention about the inhuman and degrading conditions to which asylum seekers were subjected in Greece. He feared that he would not be given an opportunity to institute proper asylum proceedings in that country and that he would risk refoulement to Afghanistan where his life would be at risk. He claimed to have been persecuted, kidnapped, abused and tortured by the Taliban.
The applicant complained under Article 13 of the Convention that, unless the removal order were stayed, he would not be able to pursue his appeal before the Finnish courts.
The remaining 48 applicants made similar complaints.
THE LAW
The Court considers it appropriate to join these applications (Rule 42 of the Rules of Court).
Article 37 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.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) the Court must consider whether the circumstances lead it to conclude that “for any other reason....it is no longer justified to continue the examination of [it]”. The Court reiterates that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out application on this basis; however, it also points out that such grounds must reside in the particular circumstances of each case (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006-; and M.H. and A.S. v. the United Kingdom (dec.), nos. 38267/07 and 14293/07, 16 December 2008).
In the Court’s view, the particular circumstances of these applications are such that it is no longer justified to continue their examination.
Mr Shakor’s and the other applicants’ complaints under Articles 3 and 13 of the Convention are based on the consequences of their return to Greece and the risk of expulsion from that country to their countries of origin. The applicants will now benefit from the undertaking the Government have set out in their letter of 11 May 2011. The practical effect of this undertaking is that they will not be returned to Greece or any other country without a full examination of their claims by the Government of Finland and with the possibility of judicial review decisions taken by the Immigration Service. Moreover, they will have the opportunity to lodge new applications with the Court, and the possibility of requesting an interim measure under Rule 39 of the Rules of Court, should that need arise.
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 the cases. Accordingly, it is appropriate to lift the interim measures indicated under Rule 39 of the Rules of Court and strike the cases out of the list.
For these reasons, the Court unanimously
Joins the case of Shakor and Others v. Finland to the applications set out in the annex to this decision;
Decides to strike the applications out of its list of cases.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Annex
Application number
Applicant’s surname
Finnish Alien Register no.
Nationality
26751/09
BALKHI
1061652
Afghan
27204/09
SHARIFI
1085650
Afghan
27558/09
HUSSEIN
1067663
Somali
27587/09
K.A.
1052581
Somali
28294/09
YUSSUF
1063448
Somali
28685/09
A.S.F.
1073222
Somali
35477/09
M.H.A.
1049760
Somali
35550/09
J.A.O.
1072185
Somali
35781/09
H.S.
1080945
Afghan
36098/09
KANBARI
1087588
Afghan
36236/09
SHIRE
1087061
Somali
36652/09
MUHAMED AMIN
1079909
Somali
37072/09
ALI
1095546
Somali
40717/09
OSMAN
1070426
Somali
42471/09
BARRE
1096875
Somali
43267/09
A.A.S.
1092026
Somali
43478/09
HUSSEINI,
HUSSEINI
1088523,
1088514
Afghan
Afghan
43813/09
G. and G.R.
1093607,
1093608
Afghan
Afghan
44792/09
D.M.M.
1071846
Somali
45936/09
ABDI
1090948
Somali
46144/09
A.K.
1092211
Afghan
47394/09
M.O.M.
1095457
Somali
48075/09
A.M.A.
1092372
Somali
48673/09
A.S.
1092347
Afghan
49841/09
M.E.
1108889
Afghan
50431/09
MOHMAND
1112793
Afghan
51062/09
M.M.A.
1101339
Somali
51826/09
TASAVORI
1042684
Iranian
52091/09
YUUSUF
1073863
Somali
52463/09
MOHAMED
1101589
Somali
52864/09
M.A. and OTHERS
1020871,
1020877,
1020881,
1020883
Afghan
Afghan
Afghan
Afghan
53711/09
O.A.
1099371
Afghan
53797/09
A.F.A.
1106778
Somali
54671/09
PHALVANI
1091356
Afghan
54796/09
JARI,
JARI
1084845
1084846
Afghan
Afghan
56002/09
M.M.M.
1092892
Somali
60018/09
IBRAHIM
1078726
Somali
60520/09
A.A.H.
1093781
Somali
60649/09
MOHAMED
1080918
Somali
60908/09
AMIRI,
AMIRI,
AMIRI
1097430,
1097433,
1097434
Afghan
Afghan
Afghan
62886/09
ALI NUUR
1085435
Somali
4028/10
A.S.J.
1087338
Somali
10941/10
SHAKOR
1124687
Afghan
11444/10
BASSAM
1130136
Syrian
12450/10
NAZARI
NAZARI,
NAZARI,
NAZARI,
NAZARI
1122163,
1122165,
1125182,
1125185,
1125187
Afghan
Afghan
Afghan
Afghan
Afghan
25349/10
MOSAVI,
MOSAVI
1138939,
1138940
Afghan
Afghan
29726/10
TASAVORI
1122878
Iranian
30934/10
HUSSEINI
1111479
Afghan
54615/10
IBRAHIM MOHSIN
1144265
Iraqi
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