FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 66697/10
Tamara SUZI
against Finland
The European Court of Human Rights (Fourth Section), sitting on 10 January 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 17 November 2010,
Having regard to the interim measure indicated on 30 November 2010 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 regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the Russian Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Tamara Suzi, is a Russian national who was born in 1929 and lives in Kouvola. She is represented before the Court by Mr Jussi Sarvikivi, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 February 2008 the applicant arrived in Finland with a tourist visa valid for 90 days. She had not applied for a residence permit beforehand in St. Petersburg before arriving in Finland.
On 9 May 2008 the applicant applied for a residence permit in Finland on the basis of family ties.
On 11 November 2008 the Finnish Immigration Service (Maahanmuutto-virasto, Migrationsverket) rejected her application and ordered her removal to the Russian Federation.
On 20 November 2008 the applicant appealed to the Kouvola Administrative Court (hallinto-oikeus, förvaltningsdomstolen), asking that the decision of the Immigration Service be quashed and that she be granted a residence permit. She claimed that she could no longer take care of herself and was thus dependent on her family’s help. Her apartment in St. Petersburg was situated on the 6th floor and the lift was often out of order. She could not climb the stairs without help and even with help it was difficult for her to walk. She could not walk outside without help. She had a gas stove in her apartment which was dangerous because of her memory problems. All her relatives lived in Finland. Her husband had died in 1999 in Finland. He was an Ingrian Finn who had applied for a residence permit in Finland on that ground but the application had lapsed when he died. The applicant had only one child, a daughter I.R., who had lived in Finland for 15 years. She had obtained Finnish citizenship in 2008 on the basis of her Ingrian descent.
On 28 January 2009 the Administrative Court rejected the applicant’s appeal. It found that the applicant could not be regarded as the family member of I.R. The applicant suffered from toxic goitre, Parkinson’s disease, hypertension and memory problems and she had had a mild stroke. She could not live alone nor manage her medication. The family life between the applicant and her daughter had been interrupted in 1993 when the latter moved to Finland. After 15 years it was no longer possible for them to continue family life. The applicant was not fully dependent on her daughter as she had a possibility to receive treatment in her home country. Even considered as a whole, it was not unreasonable to refuse the applicant a residence permit on the basis of her health or the lack of family ties.
On an unspecified date the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds of appeal already presented before the Administrative Court.
On 14 May 2009 the Supreme Administrative Court refused the applicant leave to appeal.
Already on 12 March 2009 the applicant lodged another application for a residence permit on the basis of family ties.
On 22 March 2010 the Immigration Service rejected this second application and again ordered her removal to the Russian Federation. The Service found, in addition to what had already been stated in the Administrative Court’s decision of 28 January 2009, that the applicant’s husband had died in 1999 and she had no close relatives in the Russian Federation. Her daughter had lived in Finland since 1993. According to the medical certificates submitted to the Service, the applicant suffered, in addition to those conditions mentioned already in the Administrative Court’s decision, from panic attacks. Moreover, an operation was envisaged for the removal of the toxic goitre but it was not known whether it had taken place. The applicant had a close relationship with her daughter in Finland who could help her financially in arranging necessary care and treatment in the Russian Federation. The daughter could also visit her mother there. It was thus not unreasonable to refuse the applicant a residence permit on the basis of her health or the lack of family ties.
The applicant did not appeal against this decision to the Administrative Court.
COMPLAINTS
The applicant complained under Articles 3 and 8 of the Convention about her planned removal to the Russian Federation. She was seriously ill, and the removal could be fatal to her or cause serious damage to her mental and physical health. It would also separate her from her family on whom she was fully dependent.
THE LAW
The applicant complained that her planned removal to the Russian Federation would violate Articles 3 and 8 of the Convention.
Articles 3 and 8 of the Convention read as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
...
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government argued that the applicant had not appealed against the decision of 22 March 2010 by the Finnish Immigration Service to the Administrative Court. The applicant had not even tried to use the domestic remedy available to her. There appeared to be no specific reasons for exempting the applicant from exhausting the above-mentioned remedy, in particular, as she herself had decided to lodge a new application with the Immigration Service. As the applicant had not exhausted the domestic remedies available to her, her application should be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.
The Government also argued that, in any event, the application should be rejected as being lodged out of time. The application was lodged before the Court only on 17 November 2010 even though the final decision by the Supreme Administrative Court had been given already on 14 May 2009. The application should be rejected under Article 35 §§ 1 and 4 of the Convention as being lodged out of time.
The applicant pointed out that as no leave to appeal was granted by the Supreme Administrative Court on 14 May 2009, the decision of 28 January 2009 by the Kouvola Administrative Court had become final. In matters relating to residence permits, there was always a theoretical possibility of lodging new applications. According to the Court’s case-law, repeated applications and appeals in exactly the same matter were not required since that would make it impossible to appeal to the Strasbourg organs. Appealing against the decision of 22 March 2010 would not have provided any chances of success. The Government’s objection had therefore to be rejected.
The Court does not find it necessary to examine whether the applicant has exhausted the domestic remedies or not because her application is, in any case, inadmissible for the reason set out below.
The Court notes that, according to Article 35 § 1 of the Convention, it may only deal with the matter if it has been introduced “within a period of six months from the date on which the final decision was taken”. Paragraph 4 of the same Article provides that the Court can reject any application which it considers inadmissible at any stage of the proceedings.
The Court reiterates that the six-month period for lodging an application with the Court runs from the final decision rendered by the domestic court of last instance. In the present case, the final decision was rendered by the Supreme Administrative Court on 14 May 2009. The applicant’s application, which was lodged with the Court on 17 November 2010, was thus lodged manifestly out of time. The Government’s preliminary objection must thus be accepted and the application be declared inadmissible under Article 35 §§ 1 and 4 of the Convention as being lodged out of time.
Moreover, the Court notes that the applicant still has a possibility to lodge a new application for a residence permit before the Finnish Immigration Service.
In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıLech Garlicki
Deputy RegistrarPresident
Full & Egal Universal Law Academy