Committee on the Rights of the Child - P.N., K.K., and O.M. v Finland, Communication no. 100/2019

This communication to the Committee on the Rights of the Child was submitted by nationals of Finland on behalf of the applicants’ own child relatives and on behalf of 33 other children who are held in the Hawl camp in the north-east of Syria. The children's parents are allegedly associated with the Islamic State. The applicants claim that Finland’s refusal to assist or repatriate these children despite knowing they were at risk of irreparable harm violates Articles 2, 6, 19, 20, 24, 27, 28, 37, 39, and 40 of the Convention on the Rights of the Child as well as Article 7 of the Optional Protocol on the involvement of children in armed conflict. The Committee finds the communication filed on behalf of the applicants’ own child relatives admissible and that Finland violated Articles 6(1) and 37 (a) of the Convention on the Rights of the Child.

Case status
Decided
Case number
C/91/D/100/2019
Citation
CRC, P.N., K.K., and O.M. v Finland, 100/2019
Date of decision
State
Court / UN Treaty Body
Committee on the Rights of the Child
Language(s) the decision is available in
English
Applicant's country of residence
Finland
Key aspects
Relevant Legislative Provisions

Articles 2, 6 (2), 19, 20, 24, 27, 28, 37, 39, and 40 of the Convention on the Rights of the Child

Articles 5 (2) and 7 of the Optional Protocol on the Involvement of Children in Armed Conflict

Article 10 (5) of the Optional Protocol on a Communications Procedure

Facts

The applicants are individuals, nationals of Finland, acting on behalf of children (respectively their niece and grandchildren, and 33 other Finnish children, whose parents are allegedly associated with the Islamic State) held in the Hawl camp in Syria. The Hawl camp is under the control of the Syrian Democratic Forces.

The applicants claim that Finland has not taken the measures necessary to repatriate the child victims to Finland and that this failure to act constitutes a violation of Articles 2, 6, 19, 20, 24, 27, 28, 37, 39, and 40 of the Convention, as well as of Article 7 of the Optional Protocol to the Convention on the Involvement of children in armed conflict.

Decision & Reasoning

On admissibility

The Committee recalls that pursuant to Article 5 (2) of the Optional Protocol, a communication submitted on behalf of an individual or group of individuals is to be with their consent unless the applicant can justify acting on their behalf without such consent.

Regarding the child victims who are relatives of the applicants, the Committee notes that their mothers, in the case's specific circumstances, have limited communication with the applicants, preventing them from providing written consent to the communication. Noting that the communication appears to be in the best interests of the child victims, the Committee considers that the communication submitted on behalf of the applicants’ relatives is admissible.

Regarding the other 33 children, the Committee considers that the applicants have failed to justify acting on their behalf or that the relatives of these children would have been unable to file a communication with the Committee on their behalf. The Committee, therefore, finds the communication filed on behalf of those children inadmissible.

The Committee rejects the alleged inadmissibility for non-exhaustion of domestic remedies, noting that Finland does not demonstrate that the applicants had at their disposal any judicial remedy that was available and effective to contest the administrative refusal to repatriate their relatives.

The Committee also denies that it would lack competence ratione temporis. While the communication refers to events that occurred before the Convention's entry into force for Finland, through its inaction, it allowed the alleged violations to continue after that date.

Finally, noting that the local authorities made it publicly known that it expected the detainees’ countries of nationality to repatriate them as well as the willingness of the Syrian Democratic Forces to cooperate in the repatriations of such children and mothers, the Committee concluded that Finland exercised jurisdiction over the children.

On the merits

The Committee finds that it is established that 'the conditions of detention pose an imminent and foreseeable threat to the lives of the child victims' and that their prolonged detention constitutes cruel, inhuman, or degrading treatment or punishment. (paragraphs 11.5-11.6)

The Committee reiterates that Finland, as the State of the children’s nationality and by virtue of its awareness of the situation of the extreme vulnerability of the children and of its relationship with the Syrian authorities, had the capability and the power to take action to repatriate them – which it successfully did for at least 26 Finnish children - or provide other consular responses. (paragraph 11.3)

Under these circumstances, the Committee concludes that Finland's failure to take protective measures concerning the child victims violates the children's rights under Articles 6(1) and 37(a) of the Convention.

The Committee does not consider it necessary to examine whether the same facts violate Articles 2, 19, 20, 24, 27, 28, and 39 of the Convention.

The Committee concludes that Finland should provide the applicants and the child victims with effective reparation for the violations suffered.

According to Article 10 (5) of the Optional Protocol on a communications procedure, the Committee issues the recommendations as follows:

(a) Taking urgent positive measures to repatriate the child victims, acting in good faith;

(b) Supporting the reintegration and resettlement of each child who has been repatriated or resettled;

(c) Taking additional measures, in the meantime, to mitigate the risks to the lives, survival, and development of the child victims while they remain in the north-eastern Syrian Arab Republic.

Pursuant to Article 11 of the Optional Protocol, the Committee wishes to receive from Finland, as soon as possible and within 180 days, information about the steps taken to give effect to the Committee’s Views. It further requests the State party to include information about any such steps in its reports to the Committee, publish the present Views, and disseminate them widely.

Outcome

The Committee found that there had been a violation of Articles 6(1) and 37 (a) of the Convention on the Rights of the Child. 

Caselaw cited