FOURTH SECTION DECISION

Transcription

1 FOURTH SECTION DECISION Application no /13 V.J. against Finland The European Court of Human Rights (Fourth Section), sitting on 21 October 2014 as a Chamber composed of: Ineta Ziemele, President, Päivi Hirvelä, Ledi Bianku, Nona Tsotsoria, Paul Mahoney, Krzysztof Wojtyczek, Faris Vehabović, judges, and Françoise Elens-Passos, Section Registrar, Having regard to the above application lodged on 26 February 2013, 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1. The applicant, Mr V.J., is an Angolan national who was born in The President granted the applicant s request for his identity not to be disclosed to the public (Rule 47 4). He was represented before the Court by Mr Pirkka Lappalainen, a lawyer practising in Tampere. 2. The Finnish Government ( the Government ) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

2 2 V.J. v. FINLAND DECISION A. The circumstances of the case 3. The facts of the case, as submitted by the parties, may be summarised as follows. Account of the events provided by the applicant 4. The applicant is a 25-year-old single male from Angola. He originates from Kakongo city in Cabinda province. His whole family belonged to the FLEC-FAC party (Frente de Libertação do Estado de Cabinda - Forças Armadas de Cabinda), supporting and fighting for the independence of Cabinda. His parents were killed by the Angolan security forces when he was three years old. The applicant, together with his brother and sister, went to live with his uncle and the uncle s wife after the incident. The applicant s uncle had an important role in the FLEC-FAC, being the representative of the party and coordinating its activities in their neighbourhood. The uncle was held for approximately two years in Yabi prison when the applicant was still at school. The applicant was also a member of the party but his activities within the party were minor, mostly limited to distributing leaflets. 5. The applicant described his problems with the authorities as first starting when he was around 14 years old (in 2003). He was selling tinned food at the market when he ended up having a disagreement with a buyer who subsequently reported him to the police, alleging that he was conspiring to kill an important army colonel. The applicant was apparently held for a long time (around 2 years) in detention without a trial, but eventually his uncle managed to buy his release. The conditions in detention were extremely poor and he also claimed to have been beaten and stripped naked. 6. The events that led to his flight from Angola happened in late When returning home after his working day at the market, the applicant found that his uncle, brother and sister had been killed in the house. His uncle s wife and his own common-law wife, who was also living in the same house at the time, had disappeared. The applicant has not had any information about them since. He heard that some people from his village had managed to escape to the Democratic Republic of Congo and suspected that perhaps his spouse and his uncle s wife were among those people. Subsequently, the applicant was taken by FAA (Angolan Armed Forces) soldiers to an unknown location where some 15 other persons were held. The applicant was questioned about the whereabouts of his uncle s documents concerning FLEC-FAC and ill-treated by the soldiers. He was beaten on the head with the butt of a rifle, his feet were beaten and burned, he was shot in the leg and the surface of his chest was cut with a knife. Approximately five or six days later he managed to escape, together with another FLEC-FAC activist who had also been held captive. The applicant walked back to his village and went to see the local priest, who helped him

3 V.J. v. FINLAND DECISION 3 to flee Angola. He stayed for a while with a friend of the priest and in a church in Luanda. Eventually the priest organised his escape through a smuggler. The applicant flew to Moscow and travelled by car to Finland, where he arrived on 17 April On 10 July 2009 a general physician examined the applicant. The applicant had already been hospitalised in May and June 2009 for epileptic fits which were at first diagnosed as psychogenic or caused by injuries to the head. The general physician reported scarring in several places on the applicant s body and diagnosed him as suffering from post-traumatic stress disorder. He referred the applicant to the Centre for Torture Survivors in Finland (Kidutettujen kuntoutuskeskus, Centret för rehabilitering av tortyroffer) for further examination and treatment. The applicant was examined on two occasions, on 3 December 2009 and 13 January 2010 respectively, by the physiotherapist of the Centre for Torture Survivors who reported that the applicant had altogether six visible scars on his body. Two 1 to 3 cm long scars were found on his forehead and half of his front teeth were missing. Other scars were detected on his chest, leg and feet, all matching his description of the torture he had suffered. The applicant complained also of chest pain and difficulties in breathing from time to time, which he claimed had been caused by being kicked in the chest. He was also very sensitive to touch in general, which the physician concluded to be most likely a psychological symptom of ill-treatment. The applicant had therapy sessions with both the psychiatrist and the psychologist of the Centre for Torture Survivors from 27 November 2009 until at least December In their various medical reports the psychiatrist and the psychologist concluded that the applicant s psychological condition was consistent with him having experienced severe and multiple trauma, compatible with his claim of having been tortured and having experienced the killing of his family. The psychiatrist diagnosed the applicant with severe depression and post-traumatic stress disorder and reported him as suffering also from slight memory problems. His symptoms of post-traumatic stress disorder and his memory problems eased during treatment and the applicant managed to begin studies in Finland. From 27 to 29 August 2011 the applicant was again hospitalised due to severe epileptic fits occurring despite medication. He was referred to a neurologist for follow-up. 8. As from the end of October 2012 the applicant was reported to be suicidal and was shortly admitted to intensive mental care. First set of asylum proceedings 9. On 17 April 2009 the applicant sought asylum immediately on arrival in Finland. 10. On 27 May 2010 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected his application and

4 4 V.J. v. FINLAND DECISION decided to send him back to Angola. In its decision the Immigration Service referred extensively and in detail to the applicant s asylum interview and found several discrepancies in his story. It noted that on some occasions the applicant gave exact dates and on other occasions he could not place the events at a specific moment in time. The Immigration Service found the applicant s story of his escape, in a wounded state, from the FAA soldiers to be unlikely and not credible. The Immigration Service concluded that as there were such credibility issues, the applicant s scars could have been caused by other means than torture, as he claimed. It also doubted whether the applicant was from Cabinda province. 11. The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the Immigration Service s decision be quashed and he be granted asylum, or alternatively, secondary protection or a residence permit due to individual humanitarian circumstances. He also requested that an oral hearing be held. The applicant also submitted to the court several new medical certificates, noting that it was common that such trauma as torture and epilepsy affect negatively a person s memory and ability to recount events consistently. 12. On 19 August 2011 the Administrative Court rejected the applicant s appeal and refused his request for an oral hearing as unnecessary. It noted, however, that the discrepancies in the applicant s story were minor and did not give reason to doubt that he originated from Cabinda. On the other hand, the Administrative Court did not consider it likely that the applicant would have been arrested and tortured after the rest of the family had been killed. The applicant s previous arrest when he was 14 years old seemed to be unconnected with later events. The Administrative Court considered, furthermore, that it was not likely that Angolan officials would be interested in the applicant now that his uncle was dead. Although the human rights situation in Cabinda was not very satisfactory, it concluded that the applicant could be returned there without a real risk of ill-treatment. 13. On an unspecified date the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. 14. On 12 October 2012 the Supreme Administrative Court refused the applicant leave to appeal. The applicant was notified of the decision on 30 October Second set of asylum proceedings 15. On 21 December 2012 the applicant lodged a new asylum application, referring to the same grounds as in his first application. He also submitted new medical certificates, arguing that his current state of health prevented his removal or that removal to Angola would amount to inhuman treatment as no medical treatment would be available for him there. He also

5 V.J. v. FINLAND DECISION 5 submitted certificates of his studies in Finland and relied on them as grounds for a residence permit. 16. On 15 January 2013 the Immigration Service rejected the application after having examined it in a fast-track procedure and decided to expel him to Angola. It also imposed a two-year-ban on entry into Finland and the Schengen-area. The Immigration Service considered that the applicant s situation had not changed since the previous application and that there were no grounds for a residence permit or grounds preventing the applicant s removal to Angola. It noted that the situation in the Cabinda area had calmed down, even though some attacks were still reported between the Angolan army and some rebel groups of the FLEC-FAC. However, the applicant could relocate internally to other parts of Angola if he wished. As for his health, the Immigration Service noted that mental health care was available in Angola, although a shortage of medical staff in general was reported. Post-traumatic stress disorder could be treated in one private clinic in Luanda. The treatment of epilepsy was not mentioned. 17. The applicant appealed to the Administrative Court, requesting again that a stay on removal be granted. 18. On 7 February 2013 the Administrative Court notified the applicant that the request for interim measures had been refused. The applicant s appeal before the Administrative Court remained pending before that court. 19. On 19 September 2013 the Administrative Court rejected the applicant s appeal. 20. By letter dated 21 October 2013 the applicant appealed to the Supreme Administrative Court, requesting that the Administrative Court s decision be quashed and he be granted asylum or, alternatively, secondary protection or a residence permit due to individual humanitarian circumstances. He claimed that his vulnerability continued to increase and that he was clearly in need of protection. 21. On 17 April 2014 the Supreme Administrative Court refused the applicant leave to appeal. B. Relevant domestic law Constitution of Finland 22. According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.

6 6 V.J. v. FINLAND DECISION Aliens Act 23. According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country. 24. Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts. 25. Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation. 26. According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure. 27. Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible, and if the authorities are convinced of the veracity of the application with regard to the applicant s need for international protection.

7 V.J. v. FINLAND DECISION According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area. 29. Section 147b of the Aliens Act (as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member States, of third-country nationals who are subjects of individual removal orders. The annex to the Decision contains common guidelines on security provisions for joint removals by air including, inter alia, an obligation for the Member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air. C. Relevant international materials 30. The Home Office s Country of Origin Information Report on Angola of September 2010 provides the following information: The United States State Department 2009 Country Report on Human Rights Practices on Angola observed that the Memorandum of Understanding for Peace and Reconciliation for Cabinda Province, signed in 2006, largely brought an end to the insurgency in the province, although sporadic attacks by dissident factions of the Front for the Liberation of the Enclave of Cabinda (FLEC) and counterinsurgency operations by the Armed Forces of Angola (FAA) continued during the year.... The intensity of the armed conflict in Cabinda has declined as a result of large-scale counterinsurgency operations in , and the government publicly claims that the Cabinda conflict came to a close in 2006, when a peace agreement was signed with a faction of the rebel Liberation Front for the Independence of the Enclave of Cabinda (FLEC). But the campaign for independence remains unresolved, and sporadic guerrilla attacks have been ongoing. 31. According to the U.S. Department of State s Country Report on Human Rights Practices for 2013 in Angola of January 2013: The three most important human rights abuses were cruel, excessive, and degrading punishment, including reported cases of torture and beatings as well as unlawful killings by police and other security personnel; limits on freedoms of assembly, association, speech, and press; and official corruption and impunity. 32. Concerning the availability of medical drugs for mental health, the Home Office s Country of Origin Information Report on Angola of September 2010 states the following:...the following therapeutic drugs are generally available at the primary health care level of the country: carbamazepine, phenobarbital, phenytoin sodium, amitriptyline, chlorpromazine, diazepam, fluphenazine, haloperidol, lithium. Prices keep on fluctuating depending on the availability of drugs.

8 8 V.J. v. FINLAND DECISION COMPLAINT 33. The applicant complained under Articles 2 and 3 of the Convention that, if expelled to Angola, he would face a real risk of ill-treatment and/or his life would be seriously endangered. Also his health was currently so poor that this reason alone would make removal to Angola amount to inhuman treatment. His life would be put in danger as no treatment would be available for him there. THE LAW 34. The applicant complained that he risked being subjected to treatment contrary to Article 3 of the Convention if removed to Angola. 35. Article 3 of the Convention reads as follows: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 36. The Government argued that, in respect of the second set of proceedings, the applicant had not exhausted the domestic remedies available to him as the case was still pending before the domestic courts. His application should therefore be declared inadmissible under Article 35 1 and 4 of the Convention. 37. In any event, the Government argued that the applicant s application was manifestly ill-founded. They maintained that the general situation in Angola could not be considered so unsafe that the applicant could not return there. The situation in Angola had not changed since the delivery of the domestic decisions. As to the personal situation of the applicant, the Government argued that the applicant had not provided any evidence to show that he was of particular interest to the Angolan authorities. His own societal and political activities could not be regarded as significant. Nor had he presented any other relevant grounds for believing that he would risk being subjected to torture or other inhuman or degrading treatment in Angola. The applicant s account of the events had been inconsistent, imprecise and improbable, and thus not credible. 38. The Government noted that, when making their decisions, the domestic courts and authorities had access to a number of medical certificates on the applicant s state of health, including his epilepsy. They considered that the applicant could obtain the medical treatment he needed in his home country. His health alone did not therefore warrant granting him a residence permit or preventing his removal from Finland as no other evidence supported his fear of persecution. Moreover, the Administrative Court found in its decision that there were no discrepancies between the statements made by the applicant concerning his health and the findings in

9 V.J. v. FINLAND DECISION 9 the medical certificates. The domestic authorities thus gave proper consideration to the medical certificates submitted to them and took them into account in the assessment of risk. 39. The Government further noted that the applicant had not substantiated that he had no access to the necessary medical treatment in Angola. According to available country information, medical treatment for epilepsy as well as for severe depression and post-traumatic stress disorder was available in Angola. Treatment for post-traumatic stress disorder was available in particular at the private hospital Clinica Sagrada Esperança in Luanda. Furthermore, medication for these illnesses was available in Angola. As the applicant had suffered from epilepsy from the age of about ten, he had been able to live with his condition in Angola for many years. The applicant s second asylum application and his application to the Court did not contain any new or essential evidence on his overall situation that would have warranted different conclusions being drawn in the matter. In any event, as required by EU law, the police took into account, the person s health at the time of the deportation and, if necessary, would postpone its enforcement. Therefore, in the Government s view, the applicant would not face a risk of being subjected to treatment in breach of Article 3 of the Convention if expelled to Angola. 40. The applicant claimed in his observations that the Government s observations were erroneous in the most important aspects of his case. The domestic courts and authorities had failed to understand the evidence provided by the medical certificates. The doctors had found that the applicant was in a vulnerable position and that he was at immediate risk of suicide if deported. The applicant claimed that he would be at real risk of death if removed to Angola. 41. The Court notes first of all that a final decision was rendered in the second set of proceedings by the Supreme Administrative Court on 17 April 2014 and that these proceedings have therefore been concluded. The Government s objection concerning the non-exhaustion of domestic remedies must therefore be rejected. 42. The Court observes that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see Üner v. the Netherlands [GC], no /99, 54, ECHR 2006-XII). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no /06, 125, ECHR 2008).

10 10 V.J. v. FINLAND DECISION 43. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Angola, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, 108). 44. The Court notes that even if there are human rights problems in Angola, the general human rights situation there is not of such a nature as to show, on its own, that there would be a violation of the Convention if the applicant were to return to that country. The Court has therefore to establish whether the applicant s personal situation is such that his return to Angola would contravene Article 3 of the Convention. 45. The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no /05, 8 March 2007, and Matsiukhina and Matsiukhin v. Sweden (dec.), no /04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no /02, 167, 26 July 2005; N.A. v. the United Kingdom, no /07, 111, 17 July 2008; and R.C. v. Sweden, no /07, 50, 9 March 2010). Where such evidence is adduced, it is for the Government to dispel any doubts about it. In particular, the State has a duty to ascertain all relevant facts, particularly in circumstances where there is a strong indication that an applicant s injuries may have been caused by torture. If in such circumstances an applicant produces a medical certificate before the domestic authorities as evidence of his or her having been tortured, it is for the domestic authorities to dispel any doubts that might have persisted as to the cause of such injuries (see R.C. v. Sweden, cited above, 53). 46. The Court observes, from the outset, that the Government as well as the domestic authorities and courts have questioned the applicant s credibility and pointed to certain inconsistencies in his story. The Immigration Service noted that on some occasions the applicant gave exact dates and on other occasions he could not place the events at a specific moment in time. The Service found the applicant s story of his escape, in a wounded state, from the FAA soldiers to be unlikely and not credible. The Service therefore concluded that as there were such credibility issues, the applicant s scars could have been caused by other means than torture, as he

11 V.J. v. FINLAND DECISION 11 claimed. It also doubted whether the applicant was indeed from Cabinda province. Furthermore, the Administrative Court did not consider it likely that the applicant would have been arrested and tortured after the rest of the family had been killed. It considered that it was not likely that Angolan officials would be interested in the applicant now that his uncle was dead. 47. The Court acknowledges that it is often difficult to establish precisely the pertinent facts in cases such as the present one. However, it accepts that, as a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned. 48. As to the personal circumstances of the applicant, the Court therefore shares the Government s view that the applicant has not shown any reason or submitted any evidence capable of showing why the Angolan authorities would have a particular interest in him. His own societal and political activities in Angola, mainly limited to distributing leaflets, cannot be regarded as significant. As noted by the Administrative Court, the applicant s arrest at the age of 14 seems to be unconnected with the later events. 49. As to the applicant s health the Court notes that, according to the Government, medical treatment for epilepsy as well as for severe depression and post-traumatic stress disorder is available in Angola. Treatment for post-traumatic stress disorder is available in particular at the private hospital Clinica Sagrada Esperança in Luanda. The applicant also appears to have access to medication for both epilepsy and mental illness in Angola. It must therefore be considered that the applicant has access to treatment for his severe depression, post-traumatic disorder and epilepsy in Angola (see N. v. the United Kingdom [GC], no /05, 46-51, ECHR 2008; and Bensaid v. the United Kingdom, no /98, 36-40, ECHR 2001-I). On the basis of the above facts, the Court finds that there are no such personal circumstances which would put the applicant at risk of treatment contrary to Article 3 of the Convention if removed to Angola. 50. The Court further notes that the applicant has also been described as suicidal. The Court acknowledges that suicidal tendencies at the moment of the enforcement of a deportation order may have an effect on its enforcement. However, the Government have been able to show that in Finland the police have to take into account an applicant s state of health at the time of the removal and, if necessary, to postpone its enforcement. This practice was demonstrated in the context of the case S.B. v. Finland (dec.), no /11, 38, 24 June There are no reasons to believe that this practice of assessing an appropriate state of health, which has a legal basis both in the domestic law as well as in EU law, will not continue in the future (see paragraph 29 above). The Court is therefore assured that the domestic law provides sufficient safeguards to conclude that the applicant s

12 12 V.J. v. FINLAND DECISION health and his possible suicidal tendencies would be taken into account at the time of the removal and that the removal would be postponed, if the applicant s health so required. 51. Having regard to all of the above, the Court concludes that there are no substantial grounds for believing that the applicant would be removed from Finland in a manner contrary to the Convention or that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if deported to Angola in the current circumstances. Accordingly, the complaint under Article 3 of the Convention must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 3 (a) and 4 of the Convention. 52. 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. Françoise Elens-Passos Registrar Ineta Ziemele President