BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF BAJSULTANOV v. AUSTRIA
(Application
no. 54131/10)
JUDGMENT
STRASBOURG
12 June
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bajsultanov v.
Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
Erik
Møse, judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 54131/10) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Ruslan Bajsultanov (“the
applicant”), on 16 September 2010.
- The
applicant was represented by Mr K. Kocher, a lawyer practising in
Graz. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry for European and
International Affairs.
- The
applicant alleged that the lifting of the asylum status in Austria
and the planned expulsion to the Russian Federation would subject him
to a real risk of ill-treatment within the meaning of Article 3 and
would separate him from his wife and two children, who have
independent asylum status in Austria.
- On
23 September 2010 the Court decided to apply Rule 39 of the Rules of
Court indicating to the Government that it was desirable in the
interests of the parties and the proper conduct of the proceedings
not to expel the applicant until further notice.
- On
28 January 2011 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
- On
25 May 2011, the Russian Government informed the Court that they
would not exercise their right to intervene in the proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, a Russian national of Chechen origin, was born in 1980 and
lives in Graz.
A. The asylum proceedings
- The
applicant arrived in Austria with his family on 25 July 2003 and
lodged an asylum request on the same day.
- The
applicant was raised in Urus-Martan and in the Naur District in
Chechnya and went to school there for seven years. He did not have
any vocational training, but worked subsequently in different jobs.
- The
applicant’s wife was born in Grozny and spent all her life in
Chechnya, where she married the applicant in 2002 in a religious
ceremony.
- With
regard to his reasons to apply for asylum, the applicant claimed that
he had supported the Chechen fighters during the first war from 1994
until 1996. Because he did not feel that his support had been
sufficiently acknowledged, he did not take part in the second war in
Chechnya. In summer 2003, mercenary soldiers came looking for him
during a “cleaning operation” based on a file about the
applicant that had been created after the first war. When they did
not find him at home, the soldiers beat up the applicant’s
father. Later on, the family’s house was burned down.
Thereupon, the applicant’s father advised the applicant and his
wife to leave Chechnya and the Russian Federation.
- On
24 November 2004, the Federal Asylum Office (Bundesasylamt)
dismissed the applicant’s asylum request and declared the
applicant’s expulsion to the Russian Federation permissible.
- The
applicant appealed. On 22 July 2005, the Independent Federal Asylum
Panel (Unabhängiger Bundesasylsenat) allowed the
applicant’s appeal and awarded him asylum status. Referring to
relevant country reports it found that the security situation in
Chechnya had deteriorated from May 2004 onwards and that numerous
killings and unexplained disappearances occurred on a regular basis,
many within the context of “cleaning operations”. It
further found the humanitarian situation in Chechnya to be critical.
Finally, it stated that there were no domestic alternatives, due to
systematic hindrances encountered by Chechens with Russian
authorities throughout the country and also due to difficulties in
obtaining registration and settling in other parts of Russia. It
found the applicant’s statements to be credible and
sufficiently substantiated and concluded that the applicant was at a
real risk of being subjected to ill-treatment if he returned to the
Russian Federation.
- On
27 April 2007, the Independent Federal Asylum Panel also granted
asylum to the applicant’s wife. It reasoned that since the
applicant was wanted in Russia because of his alleged hostility
towards the Russian authorities, his wife was also at real risk of
ill-treatment if she returned to Russia. It also noted that the
applicant had been awarded the status of a recognised refugee and
that the family would not be able to establish their life together in
another country. Ruling out a domestic alternative (moving to live
elsewhere in Russia), it concluded that the applicant’s wife
therefore should be awarded asylum status in application of the
principle in dubio pro fugitivo.
- The
applicant’s daughter, who was born in 2004, was granted asylum
on 15 May 2007; and his son, born in 2007, was granted asylum on
21 June 2007.
B. The applicant’s criminal convictions
- On
28 April 2005, the Graz District Court (Bezirksgericht Graz)
convicted the applicant of attempted theft and sentenced him to two
weeks’ imprisonment, suspended, and placed him on probation.
- On
17 August 2006, the Leoben Regional Court (Landesgericht Leoben)
convicted the applicant of attempted resistance to public authority,
aggravated damage to property and aggravated bodily harm, and
sentenced him to eight months’ imprisonment, six of which were
suspended, and placed him on probation for three years.
- On
10 March 2008, the Graz Regional Court (Landesgericht Graz)
convicted the applicant of partly attempted and partly actual
aggravated bodily harm, and sentenced him to twelve months’
imprisonment, while quashing the probation order in the previous
sentence. The applicant was found to have hit a prostitute on the
head with an empty bottle because she had not told him that she was
suffering from a sexually transmitted disease.
- The
applicant served his sentences and was released again in August 2009.
Since then, the applicant has been living with his wife and two
children in an apartment in Graz.
C. The lifting of the asylum status
- The
Federal Asylum Office initiated proceedings to lift the applicant’s
asylum status. In the interview conducted in the course of the
proceedings, the applicant stated that he could not return to
Chechnya because of his past and that he was convinced that he would
be killed if he returned. He claimed that many people had returned to
Chechnya after being informed that they would no longer be in danger
of persecution in Chechnya, but had then disappeared or been killed
by the security service of the Chechen president. He could not prove
this, since the people concerned were dead. Furthermore, the
applicant’s father had told him that he should not return to
Chechnya and that he was still at risk of persecution.
- On
2 October 2008 the Federal Asylum Office lifted the applicant’s
asylum status and ordered his expulsion to the Russian Federation.
Referring to section 7 of the 2005 Asylum Act, it noted that asylum
status could be lifted after conviction by a domestic court of a
particularly serious offence. It further referred to the four
criteria developed by the Administrative Court
(Verwaltungsgerichtshof) that were as follows: firstly, the
conviction must be for a particularly serious crime, such as murder,
rape, child abuse, arson, armed robbery, drug trafficking, or similar
crimes. Secondly, it must be a final conviction. Furthermore, the
offence committed must be especially dangerous (gemeingefährlich);
and finally, the public interest in lifting the asylum status must
outweigh the applicant’s interest in the protection provided by
the asylum status. The Federal Asylum Office continued by finding
that in practice, offences against physical integrity and life would
be qualified as “particularly serious crimes”. It also
made reference to the United Nations Convention 1951 relating to the
Status of Refugees that requested a balancing of the interests
involved. In conclusion, it stated that the applicant had been
convicted more than once of offences against physical integrity, and
that he had reoffended after his first conviction.
- It
further found that the security situation in Chechnya had improved
since the applicant had been awarded asylum status, and came to the
conclusion that the applicant would not be subject to a real risk of
ill-treatment contrary to Article 3 of the Convention upon a return
to the Russian Federation. As regards the applicant’s rights
under Article 8 of the Convention, the Federal Asylum Office stated
that the applicant had not taken any serious steps towards
integration into Austrian society since the award of asylum status.
He had for example only started learning German in 2007, when he had
already been in the country for four years. With regard to the
applicant’s family, it questioned its entitlement to
protection, in the context of the violent offences the applicant had
committed in the past. It referred also to the applicant’s
family still living in Chechnya, namely his parents and six siblings,
with whom the applicant maintained regular telephone contact and who
constituted a clear link between the applicant and Chechnya, and
concluded that the public interest, in view of the applicant’s
criminal record, outweighed his interests in respect of his family
life.
- The
applicant appealed against that decision. On 2 June 2009 the Asylum
Court (Asylgerichtshof) held an oral hearing, at which the
applicant repeated that he could not return to Chechnya. In general,
his family had no problems with the security services there. His
father had been visited by a member of the FSB two weeks after the
applicant had left the country and had been told that his family
should not expect any problems with the authorities, as they were
only looking for the applicant. The applicant’s wife was also
interviewed. Asked about her relationship with the applicant, she
confirmed that she visited the applicant regularly in detention and
that they would naturally continue to live together as a family as
soon as the applicant was released from prison.
- On
24 August 2009 the Asylum Court dismissed the applicant’s
appeal as unfounded.
- As
regards the general security and political situation in Chechnya, and
referring to relevant country reports, it found that military
activities had decreased significantly in recent years and that the
second war had ended officially on 16 April 2009. However, a country
report by the German Federal Foreign Office dated 22 November 2008
showed that there were still massive human rights violations
occurring in Chechnya under Ramsan Kadyrov’s dictatorship.
Furthermore, the reports generally conceded that the civilian
population was still the victim of “cleaning” operations,
but also that unexplained disappearances had decreased since 2007.
The Asylum Court considered torture still to be a problem in the
region. Referring to reports of the Office of the United Nations High
Commissioner for Refugees, it found people particularly targeted for
persecution to be (former) rebels, their relatives, political
adversaries of Ramsan Kadyrov, human rights activists, and people who
had lodged complaints with international organisations. It further
stated that the Office of the United Nations High Commissioner for
Refugees still dismissed any domestic opportunity for Chechens in the
Russian Federation. However, it also referred to a Swiss practice
that declared a domestic alternative elsewhere in the Russian
Federation acceptable for Chechens.
- In
its legal reasoning the Asylum Court stated that asylum status could
be lifted if the person was convicted by a domestic court of a
particularly serious offence, if he therefore presented a danger to
the community, and if the public interest outweighed the person’s
private interests. It referred to the Administrative Court’s
illustration of German practice, which is to qualify a particularly
serious offence as one with a sentence of at least three years’
imprisonment, but called it a “flexible system”. With
regard to the applicant, the Asylum Court found that his repeated
offences were of a very serious and violent nature. Finally, it
emphasised the applicant’s lack of integration in Austria and
the poor prospects for his future development.
- The
Asylum Court continued by examining the possibility of subsidiary
protection pursuant to section 8 of the 2005 Asylum Act. In that
context it found that the civil war in Chechnya had ended and that
there was no general risk of treatment contrary to Article 3 of the
Convention in the event of expulsion to the Russian Federation.
Further referring to the applicant’s “minor” role
in the first war, the stable life situation of his family in Chechnya
and his good prospects of work in Chechnya, the Asylum Court
dismissed a real and individual risk of persecution within the
meaning of Article 3 of the Convention in relation to the applicant.
Finally, examining the applicant’s rights under Article 8 of
the Convention with regard to his expulsion, as foreseen in section
10 § 2(2) of the 2005 Asylum Act, it found that the applicant
still had strong ties with Chechnya, and that his children were of a
young and adaptable age.
- On
1 December 2009, the Constitutional Court (Verfassungsgerichtshof)
dismissed the applicant’s application for legal aid to lodge a
complaint against the appeal decision of the Asylum Court, due to
lack of prospects of success. The applicant nevertheless lodged a
complaint and on 11 March 2010, the Constitutional Court refused
to deal with the complaint.
- That
decision was served on the applicant’s counsel on 16 March
2010.
D. The application of Rule 39 of the Rules of Court
- On
16 September 2010 the applicant lodged a complaint with the European
Court of Human Rights and requested the application of an interim
measure pursuant to Rule 39 of the Rules of Court.
- On
23 September 2010, the Court applied the interim measure under
Rule 39 and requested the Austrian Government to stay the
applicant’s expulsion to the Russian Federation until further
notice.
E. The ten-year exclusion order
- On
7 September 2010 the Graz Federal Police Authority
(Bundespolizeidirektion Graz) issued an exclusion order
against the applicant for a period of ten years. Complaint
proceedings are pending with the Administrative Court
(Verwaltungsgerichtshof).
II. RELEVANT LAW AND PRACTICE
A. Domestic law and practice
1. Jurisprudence of the Administrative Court
- In
1999, the Administrative Court examined Article 33(2) of the United
Nations Convention 1951 relating to the Status of Refugees (“the
1951 Convention”) and stated that four conditions needed
to be fulfilled cumulatively to allow for the expulsion of a refugee,
despite a real risk of persecution: the refugee must have committed a
particularly serious offence; his or her conviction must be final;
the refugee must be especially dangerous; lastly the public interest
in the refugee’s expulsion must outweigh the refugee’s
interests for protection in the state granting asylum status (see
judgment of the Austrian Administrative Court of 6 October 1999, no.
99/01/0288).
- In
a subsequent judgment, the Administrative Court analysed the
condition of a “particularly serious offence” in view of
international law and academic writing and stated as therein used
definitions that it needed to be a “capital crime or
particularly grave offence” that was “objectively and
subjectively particularly serious”. It further referred to
academic sources that claimed that Article 33(2) of the 1951
Convention was only “meant to be applied on extremely rare
occasions” and as an “ultima ratio” that
needed to be interpreted restrictively. Finally, the Administrative
Court added for illustration that Germany used as a landmark for the
application of Article 33(2) of the 1951 Convention the
condition of a sentence of at least three years’ imprisonment
(see judgment of the Austrian Administrative Court of 3 December
2002, no. 99/01/0449).
2. The 2005 Asylum Act
- The
Austrian 2005 Asylum Act provides that a foreigner is excluded from
the award of asylum status if he or she has been convicted of a
particularly serious offence, if that conviction was final, and if
the foreigner presented a danger to society due to his or her
criminal conduct. For the same reasons, it is lawful to lift an
asylum status (see sections 6 § 1(4) and 7 § 1(1) of
the 2005 Asylum Act).
- If
an asylum request is either dismissed or lifted, an asylum seeker can
still be awarded subsidiary protection under section 8 of the
2005 Asylum Act if his or her expulsion, deportation or
extradition constitutes a real risk of a violation of Articles 2 and
3 of the Convention.
- In
the event that an asylum request is dismissed or an asylum status
lifted, the authority is obliged to declare at the same time that
expulsion is permissible. However, it is not allowed to expel a
person even pursuant to a negative asylum decision, if an expulsion
would constitute a violation of Article 8 of the Convention (see
sections 10 § 1 and 10 § 2(2) of the Asylum Act).
B. Relevant international information
1. Report by Thomas Hammarberg, Commissioner for Human
Rights of the Council of Europe following his visit to the Russian
Federation from 12 to 21 May 2011, dated 6 September 2011
- The
main aim of that visit of the Council of Europe Commissioner for
Human Rights was to review the human rights situation in the North
Caucasus in the context of the regular field visits that the
Commissioner Hammarberg, like his predecessor, conducted. The report
noted that since the Commissioner’s previous visit in 2009,
there had been an increased emphasis on the socio-economic
development of the North Caucasus Federal District, and the
implementation of a strategy aiming to improve the investment
climate, fight corruption and address unemployment was ongoing.
Despite these positive steps to improve the quality of life of the
people living in the region, the situation in the North Caucasus
continued to present major challenges for the protection of human
rights. The Commissioner defined as some of the most serious problems
in terms of the protection of human rights in the republics visited
the issues of counter-terrorism measures, of abductions,
disappearances and ill-treatment, of combating impunity and of the
situation of human rights defenders. The report included the
Commissioner’s observations and recommendations in relation to
those topics.
- With
regard to counter-terrorism measures, the report concluded that the
continuing challenges to security in the North Caucasus amounted to a
major ongoing crisis, with consequences which extend beyond the
region. While state authorities had a clear duty to protect the
public from terrorism and the actions of illegal armed groups,
counter-terrorism measures should be carried out in full compliance
with human rights norms (see paragraph 33 of the report).
- The
Commissioner was further deeply concerned by the persistence of
allegations and other information relating to abductions,
disappearances and ill-treatment of people deprived of their liberty
in the North Caucasus. While the number of abductions and
disappearances in Chechnya might have decreased in the more recent
period compared to 2009, the situation remained far from normal.
Referring to the far-reaching effects of disappearances on a society
as a whole, he supported the proposal of the Presidential Council for
Civil Society Institutions and Human Rights for creating an
interdepartmental federal commission to determine the fate of persons
who have gone missing during the entire period of counter-terrorism
operations in the North Caucasus. The Commissioner further emphasised
the importance of the systematic application in practice of rules
against the wearing of masks or non-standard uniforms without badges
as well as against the use of unmarked vehicles in the course of
investigative activities. He also encouraged a wide spread
dissemination of all reports of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment among all stakeholders and reiterated the principle that
evidence obtained through ill-treatment or other unlawful means
should be treated as inadmissible in criminal proceedings (see
paragraphs 48 et seq. of the report).
- The
Commissioner went on by stating that the persistent patterns of
impunity for serious human rights violations were among the most
intractable problems of the North Caucasus and remained a source of
major concern to him. There have certainly been a number of positive
steps, such as the establishment of the Investigating Committee
structures, the increased support for victim participation in
criminal proceedings, and the promulgation of various directives such
as the Guidelines of the Supreme Court on victim participation and
the instructions of the Prosecutor General and the Investigative
Committee regarding the conduct of investigations. Despite these
measures of a systemic, legislative and regulatory nature, the
information gathered during the visit had led the Commissioner to
conclude that the situation remained essentially unchanged in
practice since his previous visit in September 2009. He emphasised
the importance of effective investigations of possible violations by
State actors of the right to life and the prohibition against torture
and ill-treatment and called on the Russian leadership to deliver the
unequivocal message that impunity would no longer be tolerated to
help in creating the requisite determination on the part of the
investigators concerned (see paragraphs 65 et seq. of the report).
- As
a conclusion for his fourth and last topic, the Commissioner stated
that human rights activists continued to face serious obstacles in
their work and could be exposed to significant risks. In settings
which present considerable challenges to the protection of human
rights, it was all the more important to ensure that those persons
and organisations which engage in human rights monitoring activities
were able to go about their work freely and without undue impediments
(see paragraph 80 of the report).
2. 2010 Human Rights Report on Russia of the United
States Department of State dated 8 April 2011
- Under
the heading “Use of excessive force and other abuses in
internal conflicts”, the Human Rights Report on Russia of the
United States Department of State of 8 April 2011 stated that
violence continued to spread in the North Caucasus republics, driven
by separatism, inter-ethnic conflicts, jihadist movements, vendettas,
criminality, and excesses by security forces. However, Chechnya saw a
decrease in violence from the previous year. Government personnel,
rebels and criminal elements continued also to engage in abductions
in the North Caucasus. Officials and observers disagreed on the
number of victims. Human rights groups believed the number of
abductions was under-reported due to the reluctance of victims’
relatives to complain to the authorities for fear of reprisals.
According to a report on the website Caucasian Knot, during the year
approximately fifty people were kidnapped or unlawfully detained by
armed parties in the North Caucasus, and only sixteen were freed.
Allegedly, there was no accountability for government forces involved
in abductions. There were continued reports that abductions were
followed by beatings or torture to extract confessions and that
abductions were conducted for political reasons. Security forces
under the command of Chechen President Kadyrov allegedly played a
significant role in abductions, either on their own initiative or in
joint operations with federal forces. Human rights groups reported
these forces were frequently suspected of being responsible for
disappearances and abductions, including those of family members of
rebel commanders and fighters.
- Armed
forces and police units reportedly frequently abused and tortured
people in holding facilities where federal authorities dealt with
rebels and people suspected of aiding them. In Chechnya and
Ingushetia there continued to be reports of torture by government
forces. There was also a report of a continued arson campaign. The
Chechen arson campaign began in 2008, following explicit threats by
Chechen President Kadyrov and Grozny Mayor Muslim Khuchiyev to burn
down houses belonging to families whose sons were suspected of
joining the insurgency. Human rights activist Natalya Estemirova was
working on a documentary on the arson campaign when she was killed in
2009.
3. Schweizerische Flüchtlingshilfe (Swiss Refugee
Council): North Caucasus: Security and human rights, dated 12
September 2011
- With
regard to the overall security situation, the Swiss Refugee Council
report of 12 September 2011 stated that general violence increased in
2010 in Chechnya, Dagestan and Ingushetia. Even though the number of
people killed decreased, the number of injured civilians increased,
which showed that civilians were affected more and more by the armed
conflict between the security services and the rebels. The Russian
President Medvedev was quoted as saying on 19 November 2010 that the
situation in the North Caucasus had not in practice improved. The
widespread impunity further encouraged the arbitrariness exercised by
the security services (see page 5 of the report).
- The main human rights violations happened by way of
arbitrary detention to obtain confessions and information about
rebels, torture and ill-treatment in secret detention centres,
kidnappings and disappearances executed by members of federal and
local security services and criminal groups for ransom, executions,
the arson campaign targeting family members of alleged rebels, and
lack of financial compensation, for example for burned houses and
property. Those most at risk belonged to the following groups: NGO
and human rights activists; victims, their lawyers, witnesses and
their families; journalists; government opponents and returnees from
abroad and their relatives. The report noted that returnees from
abroad were generally immediately detained, questioned about their
stay abroad and sometimes tortured. The questioning did not
necessarily stop after their release from detention. Returnees and
their relatives had to expect arbitrary detention at any time. In
individual cases, criminal suspicions were invented so that returners
could be ill-treated as a form of punishment for leaving Chechnya in
the first place (see pages 10 to 17 of the report).
4. Chechens in the Russian Federation: Report from the
Danish Immigration Service’s fact-finding mission to Moscow and
St. Petersburg from 12 to 29 June 2011, dated October 2011
- Relying
on statistical data provided by the Memorial NGO, the report from the
Danish Immigration Service of October 2011 showed that the year 2008
saw a return to the old tactics of abductions and disappearances, and
the number of abducted people again increased in 2009 to ninety-three
recorded cases. Furthermore, the number of punitive house burnings
increased dramatically. Newer data were not available, since
Memorial’s work was severely hampered due to Natalya
Estemirova’s abduction and killing in 2009 and the subsequent
suspension of the organisation’s work for six months. However,
Human Rights Watch reported fewer human rights violations in Chechnya
in 2010 and early 2011. Both NGOs stated that after Estemirova’s
death it had become increasingly difficult to obtain reliable
information about the security situation in Chechnya and that victims
of beatings, threats and detention had become increasingly afraid to
report those incidents to NGOs or official investigation authorities
(see pages 52 to 54 of the report).
- As particular groups at risk of being exposed to
torture, disappearances, kidnappings and extrajudicial killings the
report enumerated members of rebel groups and any person suspected of
supporting or sympathising with these groups; relatives and friends
of supporters or sympathisers of rebel groups; young, healthy men;
young women; persons who lodge complaints with the Prosecutor’s
Office, NGOs or the European Court of Human Rights and returnees from
abroad. With regard to the last-mentioned group, there were reports
that people returning from abroad were stopped by law-enforcement
officials who requested money or kidnappings for ransom of returnees.
They further risked being suspected of holding information about
anti-Kadyrov elements of the Chechen diaspora in Western European
countries and were often interrogated on their return to Chechnya. A
returnee would need to explicitly unite with the government and
Kadyrov’s policies (see pages 56 et seq. of the report). On the
other hand, the International Organization for Migration (“the
IOM”) in Russia reported on voluntary returns to Chechnya which
were considered a success. In 2010 the IOM assisted approximately
2,000 returns to the North Caucasus. The IOM conducted regular visits
to Chechnya and met returnees there. The organisation conceded
however that it was difficult to assess the situation in Chechnya on
such short visits. It was also emphasised that the number of
returnees in a particular IOM project might be too low to fully
reflect the situation of returnees in general (see pages 62 et seq.
of the report).
- With regard to the risk to former members of the
illegal armed groups, the report quoted an anonymous Western embassy
source stating that active participants in the fighting against the
Russian federal army in 1994-96 who have not since been militarily
active or in opposition to Kadyrov’s regime were not at risk of
being persecuted by the present Chechen authorities (see page 62 of
the report).
5. Guidelines on the treatment of Chechen internally
displaced persons, asylum seekers and refugees in Europe by the
European Council on Refugees and Exiles (ECRE), updated in March 2011
- With regard to Chechens returning from other
countries, the ECRE Guidelines of March 2011 stated that upon their
return they were often suspected of either being involved in illegal
armed groups, or at the very least of having significant resources.
They encountered suspicion, became victims of extortion and had
criminal cases fabricated against them. Returnees were reportedly
called to meetings with the Federal Security Services and the
Ministry of the Interior, where they were questioned, often with
threats and ill-treatment and demands for payment. Young men
especially were made to collaborate with the security services. Those
who spoke out about the regime were most at risk, for example
applicants to the European Court of Human Rights, as well as those
who appealed to national courts, federal authorities or NGOs (see
pages 54 et seq. of the report).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that expulsion to the Russian Federation would
subject him to a real risk of ill-treatment contrary to Article 3 of
the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government submitted that the application form did not indicate
whether the application was lodged with the Court within the
time-limit set out in Article 35 § 1 of the Convention.
- The
Court notes that the final decision taken with regard to the present
application was served on the applicant’s counsel on 16 March
2010. The six-month period of Article 35 § 1 of the Convention
thus started to run on the next day and expired on 16 September 2010
(see for the calculation of the six-month period for example Otto
v. Germany (dec.), no. 21425/06, 10 November 2009). The
application form was duly signed and dated by the applicant’s
counsel on 16 September 2010 and posted on the same day, according to
the postmark.
- The
Court is therefore satisfied that the application was lodged with the
Court within the six-month period (see, a contrario, Arslan
v. Turkey (dec.), no. 36747/02, ECHR 2002-X). It further notes
that the complaint is not manifestly ill-founded within the meaning
of Article 35 § 3(a) of the Convention. It further notes that it
is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions by the parties
- The
applicant claimed that the Austrian authorities had not sufficiently
thoroughly examined the question of whether he would be at a real
risk of being subjected to treatment contrary to Article 3 if
returned to Chechnya. The country reports consulted had shown that
there were still grave human rights violations in Chechnya and that
the security services very often resorted to violence and abuse.
Rebels, or people considered rebels or friends of rebels, were at
risk of being detained, of disappearing and/or of being tortured.
However, the Austrian authorities had not drawn the right conclusions
on the basis of those reports and the original reasons for the
applicant’s flight when they allowed his asylum status to be
lifted.
- Furthermore,
the applicant submitted that the Austrian authorities had not
properly applied the Administrative Court’s case-law regarding
the definition of a “particularly serious offence”. He
considered that the convictions on which the proceedings to lift his
asylum status were based did not fall within the category of a
“particularly serious offence”.
- The
Government contested those submissions and submitted firstly that it
was for the applicant to provide the necessary information to allow
the examination of an individual and actual risk of that individual’s
being subjected to ill-treatment if expelled, as required by the
Court’s case-law. They referred to M.S.S. v. Belgium and
Greece [GC], no. 30696/09, § 366, 21 January 2011, and
Saadi v. Italy [GC], no. 37201/06, §§ 128-29,
ECHR 2008. The Government asserted that the applicant only
repeated his original reasons for leaving Russia in the proceedings
concerning the lifting of his asylum status, but did not submit any
information or evidence that showed that the risk was currently still
relevant.
- The
Government further stated that the decisions of the domestic
authorities had been based on extensive country reports and
documentations which allowed them to evaluate the current situation
in relevant countries of origins. With regard to the applicant, they
reiterated that the applicant could no longer be considered to fall
within a group at risk of persecution, because of the further passage
of time, even though he had submitted credible and valid reasons for
leaving Russia in the original asylum proceedings. The authorities
had therefore thoroughly and carefully examined the applicant’s
real risk of being subjected to ill-treatment if he returned to the
Russian Federation.
- Furthermore,
both authorities, the Federal Asylum Office and the Asylum Court,
examined in detail the conditions necessary for the lifting of the
asylum status. They had, after careful evaluation, rightly concluded
that offences directed against the life and physical integrity of
another person must be considered “particularly serious
offences”, and further took into account the fact that the
applicant had reoffended.
2. The Court’s assessment
(a) General principles
- It
is the Court’s settled case-law that as a matter of
well-established international law, and subject to their treaty
obligations, including those arising from the Convention, Contracting
States have the right to control the entry, residence and removal of
aliens (see, among many other authorities, Hila v. the United
Kingdom, no. 45276/99, § 59, ECHR 2001 II, and Saadi,
cited above, § 124). In addition, neither the Convention nor its
Protocols confers the right to political asylum (see Vilvarajah
and Others v. the United Kingdom, 30 October 1991, § 102,
Series A no. 215, and Ahmed v. Austria, 17 December 1996, §
38, Reports of Judgments and Decisions 1996 VI).
- 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 Soerin v. the United Kingdom, 7
July 1989, §§ 90-91, Series A no. 161; Ahmed, cited
above, § 39; Chahal v. the United Kingdom, 15 November
1996, § 80, Reports 1996 V; and Saadi, cited
above, § 25).
- In
order to determine whether there is a real risk of ill-treatment in
any given case, the Court must examine the foreseeable consequences
of sending an applicant to the country of destination, bearing in
mind the general situation there and his personal circumstances (see
Vilvarajah and Others, cited above, § 108 in
fine). It will do so by assessing the issue in the light of all
material placed before it, or, if necessary, material obtained
proprio motu (see H.L.R. v. France, 29 April 1997, §
37, Reports 1997 III, and, more recently, Hirsi Jamaa
and Others v. Italy [GC], no. 27765/09, § 116, 23
February 2012). It is in principle for the applicant 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 Saadi, cited above, § 129).
The mere possibility of ill-treatment on account of an unsettled
situation in the receiving country does not in itself give rise to a
breach of Article 3, and where the sources available to the Court
describe a general situation, an applicant’s specific
allegations in a particular case require corroboration by other
evidence (see again Saadi, cited above, § 131, with
references to further settled case-law of the Court).
- If an applicant has not yet been extradited or
deported when the Court examines the case, the relevant time will be
that of the proceedings before the Court (see Saadi, cited
above, § 133). A full and ex nunc assessment is called
for as the situation in a country of destination may change over the
course of time. Even though the historical position is of interest in
so far as it may shed light on the current situation and its likely
evolution, it is the present conditions which are decisive, and it is
therefore necessary to take into account information that has come to
light since the final decision taken by the domestic authorities (see
Salah Sheekh v. the Netherlands, no. 1948/04, § 136, ECHR
2007-I (extracts)).
(b) Application of the above principles to
the present case
- The
Court acknowledges the fact that in 2005, the Austrian authorities
considered the applicant’s reasons for leaving Russia to be
credible and to provide sufficient grounds for them to grant him
asylum in Austria. Furthermore, the Court finds that the country
reports consulted by the Austrian authorities, especially by the
Asylum Court, still reflect a situation of danger and arbitrary
abuse, notably with regard to certain categories of people, such as
(former) rebels, their relatives, political adversaries of Ramsan
Kadyrov, human rights activists, and individuals who have lodged
complaints with international organisations. Furthermore, the Court
does not underestimate the more recent information on the human
rights and security situation in Chechnya that still indicates
occurrences of arbitrary violence, of disappearances, impunity and
ill-treatment in (secret) detention facilities. The Court is also
aware of the reported interrogations of returnees and of harassment
and possible detention and ill-treatment by the Federal Security
Service or local law-enforcement officials and also by criminal
organisations.
- However,
turning to the applicant’s personal circumstances, the Court
notes that the applicant had acted in a supporting role during the
first war, which ended in 1996. He had not taken any part in the
second war in Chechnya. The Court thus finds that considerable time
has passed since the first Chechen war. In this context, the Court
refers to the report of the Danish Immigration Service’s
fact-finding mission, which stated that even active participants in
the first war were not at risk of being persecuted by the present
Chechen authorities (see paragraph 49 above).
- The
Court also notes that his family, namely his parents and six
siblings, continued to live in Chechnya after the applicant had left
and had not reported, according to the applicant’s own
statement, any harassment or abusive behaviour by local or federal
security forces in the region. The applicant had kept in regular
telephone contact with his father; it is therefore likely that he
would have known of any punitive actions against his relatives in
Chechnya. In view of the repeatedly reported practice of abuse of
relatives of alleged rebels or supporters and sympathisers, it
therefore seems that the applicant is not considered to belong to
either of these groups.
- Overall,
it seems that in spite of certain improvements, the general security
situation in Chechnya cannot be considered safe. However, the
applicant’s individual situation does not show substantial
grounds for believing that he would be at a real risk of
ill-treatment within the meaning of Article 3 of the Convention if he
returned to the Russian Federation.
- Furthermore,
the Court also notes that the Austrian authorities, in the
proceedings concerning the lifting of the applicant’s asylum
status, took care to obtain updated country information and
thoroughly examined the applicant’s personal circumstances and
arguments when evaluating if he was at real risk of suffering
treatment contrary to Article 3 of the Convention if he returned to
the Russian Federation. The Court therefore does not concur with the
applicant’s argument that the Austrian authorities failed to
conduct a sufficiently thorough scrutiny of his case.
- Concerning
the assessment made by the domestic authorities of the applicant’s
individual risk if he returned, the Court notes that the applicant
did not counter those conclusions in any depth. Also, in the
proceedings before this Court he did not provide any substantial
information or evidence allowing it to come to a different conclusion
from the one reached above.
- The
Court further attaches importance to the fact that the case concerns
expulsion to a High Contracting Party to the European Convention on
Human Rights, which has undertaken to secure the fundamental rights
guaranteed under this provision (see Tomic v. the United Kingdom
(dec.), no. 17837/03, 14 October 2003; Hukić v. Sweden
(dec.), no. 17416/05, 27 September 2005; and Harutioenyan v.
the Netherlands (dec.), no. 43700/07, 1 September 2009;
Barnic v. Austria (dec.), no. 54845/10, 13 December
2011).
- Finally,
turning to the parties’ arguments concerning the definition of
the term of a “particularly serious offence” as used in
the Austrian 2005 Asylum Act and in relevant case-law of the
Administrative Court, the Court considers that for the purpose of a
complaint lodged under Article 3 of the Convention, the question
of the applicability of the relevant provision of the Austrian 2005
Asylum Act for the lifting of an asylum status is redundant: the
Court reiterates that Article 3 of the Convention prohibits torture
or inhuman or degrading treatment in absolute terms, irrespective of
the victim’s conduct, however undesirable or dangerous that
might be (see Chahal, cited above, §§ 79 and 80).
Therefore, regardless of the definition of a “particularly
serious crime” under Austrian law, the actual expulsion of the
applicant could still constitute a violation of Article 3 if
substantial grounds had been shown for believing that he would be at
real and personal risk of being subjected to treatment contrary to
that provision.
- Since
in the present case, however, there are no indications of the
existence of such substantial grounds, the Court holds that the
applicant’s deportation to the Russian Federation would not
amount to a violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant also complained of a violation of his right to respect for
his family life, in that expulsion to the Russian Federation would
separate him from his wife and two children. He relied on Article 8
of the Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The
Court has already dealt with the Government’s objection in
respect of the six-month time-limit above (see paragraph 54). The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. No
other ground for declaring it inadmissible has been established. It
must therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
applicant emphasised that the Austrian authorities, when examining
the decision to lift his asylum status and to expel him, in respect
of a possible interference with his right to respect for family life
overlooked the fact that his wife and the two children, born in 2004
and 2007, had independent asylum status in Austria. In those asylum
decisions, the Independent Asylum Panel explicitly stated that the
applicant’s wife had a well-founded fear of independent
persecution if she returned to the Russian Federation. It followed
that the applicant’s wife and children could not reasonably be
expected to follow the applicant to the Russian Federation to
maintain family life; in fact, an expulsion of the applicant to the
Russian Federation would render any effective family relations
impossible.
- The
applicant further stated that due to his asylum status in Austria,
his links with Chechnya had weakened considerably. Finally, compared
to the offences committed in the cases of Amrollahi and Üner
(see Amrollahi v. Denmark, no. 56811/00, § 15, 11
July 2002, and Üner v. the Netherlands [GC], no.
46410/99, § 18, ECHR 2006 XII), the applicant’s
convictions for aggravated bodily harm, for which he received a
twelve-month prison sentence, and for resistance to public authority,
for which he received an eight-month sentence, must be considered
less severe.
- The
Government submitted that the Austrian authorities had carefully
examined all legal conditions regarding the proceedings to lift the
applicant’s asylum status, and had weighed the competing
interests involved in line with the Boultif criteria (see
Boultif v. Switzerland, no. 54273/00, § 48, ECHR
2001 IX). After a thorough evaluation of the proportionality of
the interference with the applicant’s right to respect for his
family life, the authorities came to the decision that the expulsion
was proportionate to the aim pursued, especially in view of the
applicant’s entry into the country as an adult, the lack of
effort on his part to integrate into Austrian society, and the
offences committed.
2. The Court’s assessment
- The
Court reiterates that a State is entitled, as a matter of
well-established international law and subject to its treaty
obligations, to control the entry of aliens into its territory and
their residence there (see, among many other authorities, Abdulaziz,
Cabales and Balkandali v. the United Kingdom, 28 May 1985, §
67, Series A no. 94; Boujlifa v. France, 21 October 1997,
§ 42, Reports 1997 VI; Üner, cited
above, § 54; and Darren Omoregie and Others v. Norway,
no. 265/07, § 54, 31 July 2008). There is no right as such
for an alien to enter or reside in a particular country under the
Convention. However, the removal of a person from a country where
close members of his family are living may amount to an infringement
of the right to respect for family life as guaranteed in Article 8 §
1 of the Convention (see Moustaquim v. Belgium, 18 February
1991, § 43, Series A no. 193, and Amrollahi, cited above,
§ 26, 11 July 2002).
(a) Whether there was an interference with
the applicants’ right under Article 8 of the Convention
- In
the present case, the applicant was living legally as a recognised
refugee in Austria with his wife and two children, born in 2004 and
2007 respectively, and who had also been granted asylum, until his
asylum status was lifted and his expulsion to the Russian Federation
ordered. Accordingly the applicant enjoyed family life with his wife
and children and the expulsion order interfered with his right to
respect for his family life within the meaning of Article 8 § 1
of the Convention. Such an interference will infringe the Convention
if it does not meet the requirements of paragraph 2 of Article 8. It
is therefore necessary to determine whether it was “in
accordance with the law”, motivated by one or more of the
legitimate aims set out in that paragraph and “necessary in a
democratic society”.
(b) Whether the interference was “in
accordance with the law”
- The
Austrian authorities relied in particular on Articles 7 and 10 of the
2005 Asylum Act. The applicability of these provisions is undisputed
by the parties.
- The
Court is satisfied that for the purpose of Article 8 § 2 the
interference was “in accordance with the law”.
(c) Whether the interference pursued a
legitimate aim
- When
lifting the applicant’s asylum status and expelling him to the
Russian Federation, the Austrian authorities did so on the basis of
the applicant’s criminal record and in the interests of public
order and security. The Court is therefore also satisfied that the
measure was ordered “for the prevention of disorder or crime”
within the meaning of the Convention.
(d) Whether the interference was
“necessary in a democratic society”
- It
remains to be ascertained whether the decision to expel the applicant
in the specific circumstances of the case struck a fair balance
between the relevant interests, namely the applicant’s right to
respect for his family life on the one hand, and the prevention of
disorder or crime on the other. The guiding principles in order to
examine whether the measure was necessary in a democratic society
have been established by the Court as follows (see Boultif,
cited above, § 48, and Üner, cited above, §
58): in assessing the relevant criteria in such a case, the Court
will consider the nature and seriousness of the offence committed by
the applicant, the length of the applicant’s stay in the
country from which he is going to be expelled, the time elapsed since
the offence was committed and the applicant’s conduct during
that period, the nationalities of the various persons concerned, the
applicant’s family situation, such as the length of the
marriage, and other factors expressing the effectiveness of a
couple’s family life, whether the spouse knew about the offence
at the time when he or she entered into a family relationship,
whether there are children in the marriage and if so their age, and
also the seriousness of the difficulties which the spouse is likely
to encounter in the country of origin. Furthermore, the Court will
examine the best interests and well-being of the children, in
particular the seriousness of the difficulties which the children of
the applicant are likely to encounter in the country to which the
applicant is to be expelled, and the solidity of social, cultural and
family ties with the host country and with the country of
destination.
- Turning
to the first set of criteria relating to the criminal offences
committed by the applicant, the Court reiterates that the applicant
was in 2006 convicted of attempted resistance to public authority,
aggravated bodily harm and aggravated damage of property, and
sentenced to eight months’ imprisonment. Some two years later,
in March 2008, he was again convicted of partly attempted and partly
actual aggravated bodily harm and sentenced to twelve months’
imprisonment. The partial suspension and probation order in respect
of his former conviction was itself suspended, and the applicant
served both sentences. Earlier, in 2005, the applicant had also been
convicted of attempted theft and sentenced to two weeks’
imprisonment, suspended with probation. The Court thus acknowledges
that the measure taken by the Austrian authorities was based on
serious offences committed by the applicant. However, the Court also
notes that the applicant was released from prison in August 2009 and
went back to live with his family. In the approximately two and a
half years since the applicant’s release, no further criminal
investigations have been initiated against him and there have been no
further convictions.
- As
regards the length of the applicant’s stay in the host country
and his social and cultural links with Austria the Court notes that
the applicant, who has now lived in Austria for almost nine years,
has not established any particularly strong links to that country. He
does not seem to have mastered the German language. He has also never
worked in Austria and did not develop any significant social or
cultural ties there.
- On
the other hand, the applicant lived in Chechnya for almost
twenty-three years, went to school there and subsequently worked
occasionally in different jobs. The applicant’s parents and
siblings still live in Chechnya, and the applicant has maintained
regular contact with his father.
- The
Court therefore considers, in line with the Austrian authorities,
that the applicant still has stronger social and cultural ties to his
country of origin than to his host country.
- As
regards the applicant’s family ties the Court notes that the
applicant and his wife are Russian nationals, who arrived in Austria
together in July 2003. The couple have two children, who were both
born in Austria but who are also Russian nationals. The family lived
together, apart from when the applicant was in prison, during which
time however, the applicant’s wife visited him regularly. After
his release from prison the applicant went back to live with his
family.
- The
Court further notes that the applicant’s wife and the children
are recognised refugees in Austria, with asylum status which has been
awarded to them in separate decisions. However, the Court
acknowledges that at the time the applicant’s wife was
considered to be at risk of persecution in Chechnya due to her
husband being at risk. The applicant’s wife herself never
claimed a risk of ill-treatment because of her own conduct or her own
role in any of the armed conflicts. Consequently, in view of the
Court’s finding with regard to the applicant’s complaint
under Article 3 of the Convention above, the applicant’s wife
can also not be considered as being at a real risk of being subjected
to treatment contrary to Article 3 of the Convention if she returned
to Chechnya.
- The
applicant’s wife was born in Grozny and spent all her life in
Chechnya until she left for Austria with her husband. The couple’s
children are still of an adaptable age (see Darren Omoregie and
Others, cited above, § 66). The applicant’s wife,
who has resident status in Austria for herself and the children based
on their asylum status, might have a considerable interest in not
returning to Chechnya. But although the Court does not underestimate
the difficulties of a relocation of the family, there is no
indication that there are any insurmountable obstacles in the way of
the applicant’s wife and the children following the applicant
to Chechnya and developing a family life there (see Gül v.
Switzerland, 19 February 1996, § 42, Reports 1996 I,
and Darren Omoregie and Others, cited above, ibid.).
- Thus
in view of the seriousness of the criminal offences committed by the
applicant, his strong and living ties to his country of origin, his
parents and siblings’ living there and the possibility for the
applicant’s wife and children to follow him to Chechnya and to
develop a joint family life there, the Court finds that the Austrian
authorities have not failed to strike a fair balance between the
applicant’s interests in respect of his family life and the
public interest in the prevention of disorder or crime.
- The
applicant’s expulsion to the Russian Federation would therefore
not amount to a violation of Article 8 of the Convention.
IV. RULE 39 OF THE RULES OF COURT
- The
Court reiterates that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
- It
considers that the indication made to the Government under Rule 39
of the Rules of Court (see above paragraph 4) must continue in force
until the present judgment becomes final or until further order (see
operative part).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that the applicant’s expulsion to
the Russian Federation would not violate Article 3 of the Convention;
- Holds that the applicant’s expulsion to
the Russian Federation would not violate Article 8 of the Convention;
- Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable
in the interests of the proper conduct of the proceedings not to
expel the applicant until such time as the present judgment becomes
final or until further order.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
