CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 septembre 2019

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s7B6E77B2 { margin-top:14pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } Communicated on 2 September 2019   FIRST SECTION Application no. 42255/18 M.H. against Finland lodged on 6 September 2018 STATEMENT OF FACTS The applicant, Mr M.H., is an Afghan national who was born in 1997 and lives in Helsinki. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms K. Hytinantti, a lawyer practising in Helsinki. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. Background of the case The applicant is a 21-year-old Hazara Afghan male. He moved from Afghanistan to Iran when he was five years old. The applicant’s biological parents died when he was young and he lived with foster parents in Iran. When he was 15 years old, his foster mother passed away and his foster father was granted refugee status in the United States. Since his foster father was not able to prove that the applicant was his foster son, the applicant remained in Iran without any guardian. During his time as an unaccompanied minor in Iran, the applicant was on one occasion raped by two men. Eventually, the applicant left Iran. First set of asylum proceedings On 8 November 2015 the applicant sought asylum in Finland. On 21 December 2016 the Finnish Immigration Service ( Maahanmuuttovirasto, Migrationsverket ) refused the applicant’s asylum application and ordered his removal to Afghanistan. On 23 February 2018 the Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ) rejected his appeal. On an unspecified date the applicant appealed further to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) but subsequently withdrew his appeal. The applicant has not submitted any of these domestic decisions to the Court. Second set of asylum proceedings On 17 April 2018 the applicant sought asylum for the second time. He argued that he should not be removed to Afghanistan given his particular vulnerability because of the psychological problems he had developed as a result of the sexual attack suffered in Iran in 2015. On 11 May 2018 the Finnish Migration Service decided to refuse again his asylum application and to remove him to Afghanistan. The Service held that the applicant’s psychological problems had not been substantiated by any medical certificates. In any event, while there could be difficulties in finding adequate medical assistance in the countryside, in Kabul basic medical care and medicines were available, often free of charge. The applicant’s state of health did not make his removal unreasonable. Nor was he found to be at particular risk of further sexual exploitation. By letter dated 28 May 2018 the applicant appealed to the Administrative Court and requested a stay on the execution of the removal order. He argued again that he was at risk of being ill-treated or living in degrading conditions given his poverty, lack of any family or social network or knowledge of Afghanistan, and due to his psychological problems. On 29 May 2018 the Administrative Court refused the applicant’s request to stay the execution of his expulsion order. By letter dated 7 June 2018 the applicant again requested a stay on execution of the expulsion order, submitting a report from his psychiatrist which stated that he had been diagnosed with post-traumatic stress disorder (symptoms: sleeplessness, massive fears, constant anxiety, distressing flashbacks) and depression (based on losses in early childhood and his separation from his family). He was currently being treated with antidepressants and antipsychotic medication and would need psychotherapy at a later stage. On 24 September 2018 the applicant requested again a stay on execution of the removal order. On 3 December 2018 the Administrative Court rejected the applicant’s appeal and refused to stay the execution of his expulsion order. It held that the applicant’s state of health did not constitute a ground to assess the matter differently than the Immigration Service had done. By letter dated 14 December 2018 the applicant appealed to the Supreme Administrative Court, requesting also a stay on execution of the removal decision. In addition to his previous grounds of appeal, he also argued, referring to the UNHCR Eligibility Guidelines of 30 August 2018 and the EASO Country Guidance Report of June 2018, that he did not have any relatives left in Afghanistan and that he had no social network in Kabul. He pointed out that he had lived outside Afghanistan practically all his life, that he was traumatised and suffered from severe mental problems. He had been able to speak about the rape only after having received medical help for his psychological problems. On 18 December 2019 the Supreme Administrative Court rejected the applicant’s request for a stay on execution. On 14 February 2019 the Supreme Administrative Court refused the applicant leave to appeal. Other proceedings On 14 December 2018 the applicant was accepted on the assistance programme for victims of human trafficking ( Ihmiskaupan uhrien auttamisjärjestelmä, Hjälpsystemet för offer för människohandel ). COMPLAINTS The applicant complains that his expulsion to Afghanistan would be incompatible with Articles 2 and 3 of the Convention. He relies on (1) the worsened general security situation in Kabul where there is a real risk of serious harm due to indiscriminate violence; (2) the general living conditions in Kabul, as stated in the UNHCR’s Eligibility Guidelines of 30   August 2018; (3) the fact that he has no job, family or other network in Kabul and has lived almost all his life in Iran; and (4) the fact that he is particularly vulnerable because of psychological problems caused by a traumatic childhood experience (losing his parents) and a sexual assault he suffered in Iran in 2015 and since he has no access to support or adequate health care. The applicant further complains that expelling him before the Administrative Court has decided on his case would deprive him of an effective remedy and therefore violate Article 13 of the Convention. Lastly, the applicant complains under Article 14 of the Convention, taken in conjunction with Article 3, that he would be discriminated against if expelled to Afghanistan simply for the fact that he is not an internally displaced person (IDP). According to the UNHCR, an IFA/IRA is generally not available in Kabul given the general conditions there. If returned to Kabul, the applicant’s position would be worse than that of an IDP since he has lived most of his life outside his home country. QUESTIONS TO THE PARTIES 1.     In the light of the applicant’s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Articles 2 or 3 of the Convention if the expulsion order were enforced?   2.     Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 2 and 3 of the Convention, as required by Article 13 of the Convention?   3.     Has the applicant suffered discrimination in the enjoyment of his Convention rights, contrary to Article 14 of the Convention, taken together with Article 3 of the Convention?