CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mars 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          Application No. 25057/94                       by K. and I.S.                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 5 March 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 25 August 1994 by K. and I.S. against Finland and registered on 1 September 1994 under file No. 25057/94;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 11 January 1995 and the observations in reply submitted by the applicants on 3 February 1995, the Government's additional observations of 14 June 1995 and the applicants' additional observations of 18 August 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are husband and wife, born in 1967 and 1961, respectively. The first applicant is a Nigerian citizen and a technician by profession. The second applicant is a Finnish citizen on early retirement. The applicants are resident in Helsinki. They are represented by Ms. Johanna Ojala, a lawyer practising in Helsinki.         The facts of the case, as submitted by the parties, may be summarised as follows.         On 8 March 1993 the first applicant was granted a visa to Finland. It was valid from 10 to 12 March 1993 and was issued for the purpose of his business negotiations. He entered Finland on 11 March 1993. On 13 March 1993 he requested asylum and a residence permit. In this connection he claimed to have lost his passport after his arrival in the country. On 8 June 1993 the Aliens Centre (ulkomaalaiskeskus, utlänningscentralen) of the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) rejected his request.         On 16 June 1993 the applicants contracted marriage. The first applicant subsequently lodged a fresh request for a residence permit, referring to his marriage. On 29 September 1993 the Aliens Centre rejected his request, considering that he had submitted incorrect information in his previous visa and asylum requests. The Centre also found that his fresh request should have been lodged from abroad.         On 12 November 1993 the Aliens Centre ordered the applicant's expulsion, but did not prohibit him from re-entering Finland. On 20 December 1993 he left Finland for Nigeria, where he, on 22 December 1993, lodged a fresh request for a residence permit in Finland. In support of the request lodged with the Finnish Embassy he submitted, inter alia, a medical report showing that the second applicant had been suffering from schizophrenia since the 1970's. She had been hospitalised on more than ten occasions and was in need of continuous support. The first applicant also referred to an undertaking by the second applicant to be financially responsible for his stay in Finland.         On 28 February 1994 the Aliens Centre issued a negative opinion concerning the request, following which it was rejected by the Embassy in March 1994. No appeal lay against the decision.         On 31 March 1994 the Aliens Ombudsman (ulkomaalaisvaltuutettu, utlänningsombudsmannen) requested the Aliens Centre to reconsider the first applicant's request. The Aliens Ombudsman invoked fresh medical evidence of 24 March 1994 according to which the separation of the applicants had had a deleterious effect on the second applicant's health. She was rather dependent on the first applicant and following his return to Nigeria she had again been hospitalised. No action was taken in response to the request.         In a further petition of 27 April 1994 lodged with the Ministry for Foreign Affairs the first applicant demanded that the Embassy's refusal of his request be reconsidered or at least that he would be given a decision in writing. No action was taken.         On 3 August 1994 the first applicant lodged a further request for an annulment of the Embassy's refusal and a reconsideration of his request. He underlined that no written decision had been made and that he had not been informed of the reasons for the Embassy's refusal. He had furthermore not been heard either in regard to the Aliens Centre's negative opinion of 28 February 1994 or in any other respect prior to the Embassy's refusal.         On 19 August 1994 the second applicant obtained a copy of the Aliens Centre's negative opinion of 28 February 1994 which read in extenso:         (translation)         "The permit for entry and residence is opposed, also       because of the serious mental health problems of [the       second applicant]."         On 19 August 1994 senior officials of the Ministry of the Interior undertook to recommend the issuing of a residence permit to the first applicant. The Aliens Centre subsequently issued an opinion favouring the granting of a residence permit, having regard to, inter alia, the medical report of 24 March 1994 concerning the second applicant's mental health.         On 23 August 1994 the Embassy granted the first applicant a one-year renewable residence permit valid as from 26 September 1994 on the grounds of his marriage to the second applicant. On 18 October 1994 the first applicant re-entered Finland.   COMPLAINTS   1.     The applicants complain that the Embassy's refusal to issue the first applicant with a residence permit violated their right to respect for their private and family life. They underline that the second applicant was unable to follow the first applicant to Nigeria or elsewhere due to her state of health which necessitates psychiatric treatment in Finnish. They invoke Article 8 of the Convention.   2.     The applicants also complain that the Embassy's refusal to issue the first applicant with a residence permit discriminated against them, given that the second applicant's health constituted the only specific ground for rejecting his request. They invoke Article 14 of the Convention in conjunction with Article 8.   3.     The applicants furthermore complain that their forced separation on account of the Embassy's refusal effectively prevented them from founding a family and thereby violated their rights under Article 12 of the Convention.   4.     In their submissions of 3 February 1995 the applicants finally complain that the Embassy's refusal also subjected them to inhuman and degrading treatment contrary to Article 3 of the Convention. This treatment was also discriminatory, contrary to Article 14 read in conjunction with Article 3.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 25 August 1994 and registered on 1 September 1994.         On 30 November 1994 the Commission (First Chamber) decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 11 January 1995. The applicants replied on 3 February 1995.         On 28 February 1995 the Commission granted the applicants legal aid.         Additional observations on the admissibility and merits of the case were submitted by the Government on 14 June 1995 and by the applicants on 18 August 1995.   REASONS FOR THE DECISION         The applicants complain that the Embassy's refusal to issue the first applicant with a residence permit violated their right to respect for their private and family life, discriminated against them, prevented them from founding a family and subjected them to inhuman and degrading treatment. They invoke Articles 3, 8, 12 and 14 of the Convention.         The Government principally submit that the application should be struck off the Commission's list of cases in pursuance of Article 30 para. 1 of the Convention, since the first applicant has now been granted a residence permit in Finland and it is no longer justified to continue the examination of the case.         The applicants oppose a strike-off, since the granting of a residence permit in August 1994 did not repair the violations of the Convention resulting from the Embassy's refusal of March 1994. Also general considerations speak against a strike-off, considering the questionable practice of the Finnish aliens authorities in cases concerning the right to respect for family life.         The Commission notes that, on 12 November 1993, the first applicant was ordered to be expelled from Finland. Having left the country on 20 December 1993, he requested the Finnish Embassy in Nigeria to issue him with a residence permit. This request was eventually granted on 23 August 1994 and on 18 October 1994 the first applicant re-entered Finland, where he appears to have joined the second applicant.         In these circumstances the Commission considers that the Convention issues underlying the present application have been resolved within the meaning of Article 30 para. 1 (b) of the Convention. The Commission furthermore finds no special circumstances regarding respect for Human Rights, as defined in the Convention, which would require a further examination of the application.         For these reasons, the Commission, unanimously,         DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                       (C.L. ROZAKIS)