Finland - Supreme Administrative Court, KHO:2012:18
Keywords:
| Keywords |
|
Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
|
Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
|
Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
|
Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
Headnote:
A Russian Federation citizen arrived in Finland from another EU country (Lithuania) where he/she alleged that he/she had been persecuted and claimed international protection on this basis. The Immigration Service denied the Applicant a residence permit, failed to examine the application for international protection and decided to deport him/her to Lithuania. The Immigration Service considered Lithuania to be a safe third country and the application for international protection was not examined in relation to his/her country of origin. The Supreme Administrative Court took the view that the issue of international protection could not be dealt with in Lithuania as the grounds for the application were cited as persecution in that same country. The Administrative Court was ordered to overturn the Immigration Service’s decision and return the case back for further consideration.
Facts:
The Immigration Service denied the Russian Federation citizen’s residence permit application, failed to examine the application for international protection and decided to deport him/her to Lithuania which was considered to be a safe third country. The Applicant stated that the charges against him in Lithuania were fabricated and that the court was prejudiced. The Applicant claimed that the hearing was in breach of his/her human rights. In addition, the Applicant claimed to have been subjected to violence whilst in custody in Kaunas. His/her refugee application is still on-going in Lithuania and is at an appeal stage. The Immigration Service took the view that the Applicant was afforded the opportunity to appeal against the decision made by the Lithuanian authorities and he/she still has the right, if he/she wants, to appeal against that decision to the European Court of Human Rights, citing the so-called ‘rule 39 procedure’ in order to get the execution of the deportation order denied. In support of his/her application, the Applicant provided doctors’ statements which state that he/she suffers from major depressive disorder and post-traumatic stress disorder. Based on the country of origin information, the Immigration Service consideres Lithuania to be a safe third country as specified in Section 99 of the Aliens Act because Lithuania has ratified the Refugee Convention, the ICCPR and UNCAT without geographical limitations and applies them in practice. , The Immigration Service considered the application to be manifestly unfounded because the Applicant arrived from a safe third country to which he/she could be returned. Because the Applicant arrived in Finland from a safe third country where he/she is protected by Sections 87 and 88 of the Aliens Act and to which he/she can be safely deported, his/her application has not been examined in substance in Finland.
The Administrative Court was of the opinion that, based on the grounds outlined above, the Immigration Service could not reject or refuse to examine the application for international protection stemming from the events in Lithuania. The AApplicant applied for international protection, on the one hand in relation to his/her country of nationality – the Russian Federation – and on the other hand in relation to his/her country of residence, Lithuania. He/she based the application on the grounds mentioned in the Immigration Service’s decision and in his/her appeal. These mainly relate to his/her treatment by the Lithuanian authorities. The Administrative Court stated that the question of whether the Applicant is in need of international protection from his/her country of residence – Lithuania – due to his/her treatment there, cannot be examined in the Lithuanian asylum process. Thus the Administrative Court took the view that the Immigration Service could not reject the AApplicant’s application for international protection relating to his/her experiences in Lithuania based on the fact that it considered Lithuania to be a safe third country. For the same reason, the Immigration Service could not reject the application as manifestly unfounded based on the fact that it considered Lithuania to be a safe third country.
For this reason, the case was returned to the Immigration Service for further consideration.
The Immigration Service requested leave to appeal to the Supreme Administrative Court and it was granted. In its appeal it argued that the Administrative Court’s decision should be repealed and the Immigration Service’s decision upheld. In the alternative, it argued that the Administrative Court’s decision should be repealed and the case be returned to the Administrative Court for further consideration.
Decision & reasoning:
The Supreme Administrative Court granted the Immigration Service leave to appeal and reviewed the case. The appeal was denied. The final decision of the Administrative Court remained unchanged. The Supreme Administrative Court stated thatthe Applicant applied for international protection in Finland due to being subjected to persecution by the authorities in Lithuania and in his/her opinion he/she wasn’t given a fair trial there. For this reason he/she doesn’t consider Lithuania to be a safe country of asylum for him/her.
In March 2010, Lithuania’s Supreme Court repealed the sentence given by Kaunas Circuit Court in 2009 and returned the case for reconsideration.
The available evidencesupports the Immigration Service’s understanding of Lithuania as a safe third country. However, this bears no significant judicial importance in this case. Lithuania cannot deal with a case concerning international protection which is based on claims of persecution in the very same country.
For this reason, and taking into account the above reasons for the Administrative Court’s decision and the legal rules therein as well as the arguments made in the Supreme Administrative Court and the submissions, there are no grounds for amending the final decision of the Administrative Court.
Outcome:
The Supreme Administrative Court denied the appeal and stated that there were no grounds for amending the final decision of the Administrative Court.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - T.I. v United Kingdom (Application no. 43844/98) |
Other sources:
Government proposal on the Aliens Act HE 28/2003 and the statement by the Committee on the Constitution on the proposal (PeVL 4/2004 vp)
The Administrative Committee’s report (HaVM 4/2004 vp)
US State Department’s8.4.2011 Country Report on Lithuania
Bundeszentrale für Politische Bildungin1.1.2007 Report on Lithuania