In the case of I.K. v. Austria,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 5 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
2964/12) 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 I.K. (“the applicant”), on
13 January 2012. The President of the Section acceded to the applicant’s
request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).
The applicant was represented by Ms D.
Einwallner, a lawyer practising in Vienna. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry of European and
International Affairs.
The applicant alleged that removing him to Russia would subject him to ill-treatment within the meaning of Article 3 of the Convention,
and that it would also separate him from his wife and children, in violation of
Article 8 of the Convention.
On 17 January 2012 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 17 January 2012 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 26 January 2012 the Russian Government was
invited to inform the Court whether they wished to exercise their right under
Article 36 § 1 of the Convention to intervene in the proceedings. On 17 April 2012
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 1976 and lives in Vienna.
A. The applicant’s asylum proceedings in Austria
The applicant left Chechnya for Kyrgyzstan and Poland in April 2004, with his mother. They arrived in Austria in November 2004 and
lodged an asylum request there.
He claimed in his asylum proceedings that in 2001
his father had been shot before his eyes. The applicant’s father had worked in
the security services of former President Maskhadov, a separatist leader, which
was why he and his family had been persecuted. Furthermore, the applicant had
been arrested four times and only released after the payment of a ransom. The
applicant stated that he had been ill-treated during those arrests and also
that in 2004 Russian soldiers had brutally beaten him in the course of an
identity check.
On 5 March 2007 the Federal Asylum Office (Bundesasylamt)
dismissed the applicant’s asylum request as unfounded. It found the applicant’s
story contradictory and unconvincing and also found that he had failed to
substantiate the existence of any real risk to himself.
It seems that the applicant’s mother’s asylum
request was also dismissed, for the same reasons.
The applicant and his mother appealed. However,
after an oral appeal hearing, the applicant withdrew his appeal on 28 April
2009 due to allegedly wrong legal advice he received at the time.
On 12 May 2009 the Asylum Court (Asylgerichtshof)
allowed the applicant’s mother’s appeal and granted her the status of a
recognised refugee. As regards her flight story it found as follows:
“The following has been established concerning the appellant
and her reasons for fleeing:
The appellant claims to be a Russian Federation national of
Chechen ethnic origin and, prior to fleeing, lived in the village of Kurchaloy in Chechnya.
It is credible that in the event of her return to her country
of origin, the appellant would be under threat from State authorities or third
parties on account of her membership of a particular social group. The
appellant alleged that she was under threat from Russian and Chechen security
forces because of her husband’s previous activities.
It has been found plausible that the appellant’s husband was an
officer for a Chechen security agency and was murdered by the security forces
on 5 November 2001 in the village of Kurchaloy.
The findings as to the appellant and her reasons for fleeing
result from the descriptions given by the persons examined at the hearing,
which - in this respect - are consistent and credible. The appellant was able
to give a description of her husband’s murder that was clear and consistent
with her previous statements, thereby conveying the impression of having
actually experienced what she was talking about. The witness C.S. gave a
convincing statement confirming that the appellant’s husband worked for a
Chechen security agency.”
After referring to a number of general country
reports on Russia and the north Caucasus region, the Asylum Court continued its
legal assessment of the facts of the applicant’s mother’s case, as follows:
“Regard being had to the findings concerning the situation of
Chechens in the Russian Federation, the appellant faces an objective risk of
persecution in view of the facts established as to her reasons for seeking
asylum. The appellant’s husband was murdered in his homeland because of his
work for a Chechen security agency. Accordingly, the appellant is already known
to the Russian and pro-Russian authorities and has come specifically to their
attention. This means that she is in particular danger of being arrested by the
security forces in Chechnya, and in such an eventuality there is a significant
probability that she would be at risk of suffering human rights violations.
Moreover, in view of the situation in Chechnya and the fact that the appellant
is known by name to the authorities, it cannot be assumed with sufficient
certainty that she would not be exposed in other parts of the Russian
Federation, for example, to attacks of any kind warranting asylum or that she
could expect effective protection from the authorities against such attacks. Accordingly,
the appellant - who, moreover, is suffering from post-traumatic stress disorder
- has no reasonable internal flight alternatives available either.”
On 4 June 2009 the applicant lodged a new asylum
request. In interviews conducted in the course of those asylum proceedings, the
applicant repeated the initial reasons he had given for leaving Chechnya, and informed the authorities that he had married a Russian national in March 2008
and that the couple had two children together, born in 2009 and 2010. When
asked if his mother was alive, the applicant stated his mother’s name and that
she lived with him and his family in the same apartment. He explained that his
family therefore all lived in Austria and that he would like to be with them
and work there. When the applicant was notified that he had not lodged any new
facts, he stated that he knew that, but that he did not have any new facts to
offer or information in that regard.
The applicant confirmed that he still had relatives
and friends in Chechnya and that a cousin of his had returned to Chechnya from Austria in 2010. A brother of his father lived in Ingushetia. Referring to his
criminal convictions (see paragraphs 25 and 26 below) the applicant stated that
he regretted his mistakes. Finally, in the interview on 5 January 2011 the
applicant stated, when asked whether he was taking any medication at the moment,
that he was not.
On 11 January 2011 the Federal Asylum Office rejected
the applicant’s subsequent asylum request as res judicata. It
established the applicant’s identity and reiterated the proceedings in his
respect. In the context of the applicant’s private and family life in Austria, the Federal Asylum Office referred to his mother, wife and children, confirming that they
were all recognised refugees in Austria and citing their file numbers. Indicating
various country reports, inter alia by the German Federal Foreign Office
of 2010, the United States Department of State Report on Russia of 2010, the
Office for Foreigners (Poland), CEDOCA, the Documentation and Research Centre of
the Office of the Commissioner General for Refugees and Stateless Persons
(Belgium) and the country of origin information available to the Federal Asylum
Office, it noted that the general security situation and the protection of
human rights in the north Caucasus region had deteriorated again in 2008 and
2009. In some cases of individuals who had decided to follow rebel groups, the
authorities were reported to have retaliated by burning down the houses of their
relatives. The numbers of abductions had also increased again, to seventy-four
cases in the first half of 2009. The Federal Asylum Office further referred to
the amnesty regime introduced in 2006 and the surge of house burnings in 2008
and 2009.
In conclusion and as regards the applicant’s
submissions, the Federal Asylum Office stated that the applicant’s initial
reasons for leaving had already been considered unconvincing in the first
proceedings and that the applicant had not forwarded any new relevant
information in the new proceedings.
An appeal by the applicant against this decision
was granted suspensive effect. In his appeal the applicant claimed deficiencies
of the proceedings and a wrong legal assessment of the established facts by the
Federal Asylum Office. He claimed that, because he was still at real risk of
persecution if he returned to Chechnya and because of the deterioration of the
security situation there, his subsequent asylum request could not be considered
a res judicata.
On 1 April 2011 the Asylum Court dismissed the
appeal as unfounded. In the summary of the facts of the case, it referred to
the applicant’s mother, wife and children, while again citing the file numbers
of their asylum proceedings.
As regards the nature of a res judicata,
it reiterated that a new decision on the merits of an application could only be
based upon a change of circumstances which was significant enough to allow the
conclusion, either alone or in combination with other facts, that those reasons
for which the former application had been dismissed were to be evaluated
differently in the present proceedings. Referring to long-standing
administrative jurisprudence, it further stated that the credibility of the
alleged new facts had to be evaluated anew in the context of all former investigation
results in the event that those alleged new facts could prima facie lead
to a different outcome of the proceedings.
The Asylum Court went on and established that
the applicant’s reasons for leaving Chechnya presented in the subsequent
proceedings had already been deemed unconvincing by the previous final decision.
It therefore confirmed that the applicant had not presented any relevant new
information with regard to his asylum request. Furthermore, the applicant was
not suffering from any severe psychological or physical illness, and still had friends
and family living in Chechnya.
With regard to the applicant’s right to respect
for his family life, it considered that the applicant’s removal to Russia would
constitute an interference with his family life, since the applicant lived with
his mother, wife and two minor children, who were all recognised refugees, but
found that the applicant had never had secure residence status in Austria, even
when he had married, and that he had not shown that he had substantially
integrated into Austrian society. On the other hand, the applicant had been
convicted four times of criminal offences such as theft and aggravated bodily
harm, and an exclusion order in respect of residence until September 2013
had been issued in 2007, which had led to the conclusion that the public
interest in the applicant’s removal outweighed his private interest in respect of
his family life in Austria.
On 10 June 2011 the Constitutional Court (Verfassungsgerichtshof)
dismissed the applicant’s application for legal aid to enable him to lodge a
complaint. That decision was served on the applicant’s counsel on 18 July
2011.
B. The applicant’s criminal convictions
The applicant was convicted of theft and
attempted theft on 29 November 2005 and 29 March 2006, fined 100 euros
(EUR) and sentenced to one month’s imprisonment, suspended with probation. On
22 May 2007 the Krems Regional Court (Landesgericht Krems)
convicted the applicant of trafficking under the 2005 Aliens Police Act (Fremdenpolizeigesetz)
and of aggravated bodily harm, and sentenced him to ten months’ imprisonment.
Finally, on 6 February 2008, the Vienna Regional Court (Landesgericht Wien)
again convicted the applicant of aggravated bodily harm and sentenced him to an
additional two months’ imprisonment.
On 27 June 2007 the Vienna Federal Police
Authority (Bundespolizeidirektion) issued a banning order (Rückkehrverbot)
against the applicant until 27 September 2013.
C. The application of Rule 39 of the Rules of Court
On 2 August 2011 the Vienna Federal Police
Authority summoned the applicant to arrange for his removal. It seems that a
travel certificate had been requested.
On 17 January 2012 the Court applied an interim
measure under Rule 39 and requested the Austrian Government to stay the
applicant’s removal to Russia until further notice.
D. Medical evidence submitted by the applicant
From 28 June to 6 July 2011 the applicant was
treated as an inpatient at Otto Wagner Hospital in Vienna for a depressive
episode. The discharge letter of 7 July 2011 stated that he had been admitted
suffering from a severe depressive episode and suicidal thoughts, so that his
medication could be adjusted. He was prescribed Cipralex and Mirtabene when he
was released. For his health to continue to improve it was recommended that he should
continue to have his family’s support and that removal to Russia would be irresponsible from a psychiatric point of view.
On 27 June 2011 and after one consultation, Vienna General Hospital confirmed that the applicant was suffering from post-traumatic
stress disorder and a medium-level depressive episode and recommended
pharmacological and psychotherapeutical treatment. It also advised against removing
him to Russia.
A diagnostic letter from Wilhelminen Hospital in Vienna dated 12 May 2010 stated that a CT scan had shown a facial bone
conversion in his right ventral maxilla that would correspond with the
applicant’s statement that he had been physically abused in Chechnya.
II. RELEVANT LAW AND PRACTICE
A. Domestic law and practice
Res judicata in the
domestic legal system as regards asylum proceedings
Section 68 § 1 of the Code
of General Administrative Procedure (Allgemeines
Verwaltungsverfahrensgesetz) provided that submissions from individuals who request
modification of a ruling which is not, or is no longer, subject to appeal,
shall be rejected as res judicata. In this context the 2005 Asylum Act (Asylgesetz
2005) included in its section 75 § 4 a reference to section 68 of the
Code of General Administrative Procedure that
“Decisions rejecting or dismissing a request under the [former
versions of the] Asylum Act ... shall constitute res judicata in
proceedings under this Federal Act concerning the same facts.”
. The
Austrian Administrative Court has observed in its jurisprudence as follows
(see judgment of the Administrative Court of 21 November 2002, no. 2002/20/0315):
“An alleged change in circumstances may entitle and require the
authority to give a fresh decision on the merits - once it has carried out any
necessary investigations of its own motion under section 28 of the 1997 Asylum
Act - only where such a change, by itself or in combination with other facts,
would be of legal relevance to the question of asylum; a different legal
assessment of the request must not be prima facie inconceivable. Furthermore,
the alleged change in circumstances must have at least a credible basis which
is relevant to the question of asylum and to which to the above-mentioned
prospect of a positive decision can be linked. To that end, as soon as it
begins to examine the admissibility of the (fresh) asylum request, the authority
must address the credibility of the asylum-seeker’s allegations and, where
appropriate, the evidential value of any certificates. Should the authority’s
investigations conclude that, contrary to the party’s allegations, a change in
circumstances which is prima facie capable of giving rise to a different
assessment has not in fact occurred, the asylum request must be rejected in
accordance with section 68(1) of the Code of General Administrative Procedure (see
decision of 19 July 2001, no. 99/20/0418, with further references; see also the
case-law recapitulated in Walter/Thienel, Verwaltungsverfahrensgesetze I,
2nd ed., notes 73 et seq. on section 68 of the Code of General Administrative
Procedure).”
B. Relevant international information
1. Summary of country information available at the
time of the domestic proceedings
This section gives a short overview of selected
reports from various easily accessible sources on the security and human rights
situation in Chechnya available at the time of the applicant’s subsequent
asylum proceedings in Austria.
(a) Report by Thomas Hammarberg, Commissioner for
Human Rights of the Council of Europe, following his visit to the Russian Federation (Chechen Republic and the Republic of Ingushetia) from 2 to 11 September 2009,
dated 24 November 2009
The Commissioner stated that the north Caucasus has been a region of major interest and concern from the very beginnings of the
office of the Commissioner of Human Rights in 1999.
The Commissioner noted that the lifting of the
decade-long counterterrorist operation in the Chechen Republic had not been
accompanied by a diminution in the activities of illegal armed groups. Federal
and Chechen authorities had carried out over 100 special operations in the
first half of 2009 (see paragraphs 21-23). The report further noted an increase
in the number of abductions and disappearances in Chechnya since the end of
2008. In some cases, the involvement of law-enforcement officials had been
alleged (see paragraph 30). Finally, the lack of effective investigations of
repeated human rights violations, the alleged involvement of law-enforcement
officials in crimes, and the deficiencies of the judiciary, were concerns which
had been raised by both the current Commissioner and his predecessor (see
paragraph 39).
He concluded the report with regret, in view of
the fact that stability in the north Caucasus region had yet to be achieved.
Increased activity by illegal armed groups, the lack of effective
investigations of disappearances and killings, and murders of human rights
activists were of particular concern. Patterns of impunity persisted, even
though there were indications of serious efforts to reinforce the rule of law.
The difficult economic situation was one of the destabilising factors, and the
need for economic development and further social reconstruction was evident
(see paragraph 64).
(b) US State Department Human Rights Report on Russia
2009, dated 11 March 2010
This report described the north Caucasus region
of Russia as remaining an area of particular concern. The government’s poor
human rights record in the north Caucasus worsened as the government fought
insurgents, Islamist militants, and criminal forces. Local government and
insurgent forces reportedly engaged in killing, torture, abuse, violence,
politically motivated abductions, and other brutal or humiliating treatment,
often with impunity. In Chechnya, Ingushetia and Dagestan, the number of
extrajudicial killings and disappearances increased markedly, as did the number
of attacks on law-enforcement personnel. Authorities in the north Caucasus appeared to be acting outside federal government control. Although the Chechen
government announced a formal end to counterterrorist operations, there was an
increase in violence during the summer, which continued through the remainder
of the year. Federal and local security forces in Chechnya, as well as the
private militia of Chechen president Ramzan Kadyrov, allegedly targeted
families of suspected insurgents for reprisals and committed other abuses.
There were also reports of rebel involvement in bombing civilian targets and of
politically motivated disappearances in the region. Some rebels were allegedly
involved in kidnapping for ransom. According to the Internet-based news
agency Caucasian Knot, 342 members of law-enforcement agencies lost their lives
and 680 were injured during the year in actions involving insurgents. Thousands
of internally displaced persons were living in temporary centres in the region:
the centres failed to meet international standards.
Under the heading “Use of Excessive Force and
Other Abuses in Internal Conflicts”, it was noted that during the year complex
and inter-connected insurgencies caused continuing instability in the north
Caucasus, with a marked upsurge in incidents committed by government and
insurgent forces during the year. Overall, there were increases in
disappearances, killings, and other abuses. There were reports that federal and
local security forces seeking to quell the insurgencies were continuing to use
excessive force and to engage in human rights abuses, including torture,
summary executions, disappearances, and arbitrary detentions. Authorities in
the north Caucasus were reportedly acting with impunity, and some observers
alleged that the federal government had ceded de facto control of the
region to local authorities. Rebels were also continuing to commit human rights
abuses, including major acts of terrorism and summary executions.
As regards abductions, the report stated that Government
personnel, rebels and criminal elements were continuing to engage in abductions
in the north Caucasus. Officials and observers disagreed on the numbers
involved. Human rights groups believed that the numbers of abductions were
under-reported, due to the reluctance of detainees’ relatives to complain to
authorities for fear of reprisals. The Memorial NGO reported that during the
year there were ninety kidnappings in Chechnya, while the MAShR NGO reported
234 disappearances in Ingushetia and thirty-one disappearances in Dagestan. It stated that 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. Criminal groups in the region, possibly with links to
rebel forces, frequently resorted to kidnapping.
Finally, under the heading “Physical Abuse,
Punishment and Torture”, it could be read that armed forces and police units
were reported to have frequently abused and tortured people in holding
facilities where federal authorities took them to separate fighters and those
who were suspected of aiding rebels from ordinary civilians.
(c) Amnesty International Report 2009 on Russia, dated 28 May 2009
The Amnesty International report stated that
there were continuing reports of human rights violations, including arbitrary
detention, torture and ill-treatment, and extrajudicial executions, by law-enforcement
officials in Chechnya, Dagestan and Ingushetia. There was also an ongoing
concern that investigations of these violations were not effective, resulting
in widespread impunity.
(d) Schweizerische Flüchtlingshilfe (Swiss Refugee
Council): North Caucasus: Security and Human Rights, dated 25 November 2009
The present report was an update to the
organisation’s report of 2007 and used sources from human rights organisations,
such as the Human Rights Centre of the Russian NGO Memorial, Amnesty
International and Human Rights Watch, as well as the results of a meeting with
six human-rights activists from the north Caucasus and a Chechen human-rights
specialist. The report stated that the security situation in the whole north Caucasus region had deteriorated. In summer 2009 the number of those killed in “special
operations” conducted by security services or in terrorist attacks had doubled.
The Centre for Strategic and International Studies CSIS reported 442 deaths
between May and August 2009 in the whole region (see page 4).
The report cited arbitrary arrests, secretive
detention, torture and ill-treatment, disappearances and abductions, death in
detention and extrajudicial executions, the burning of houses, displacements
and forced recruitments as the most severe violations of human rights (see page
10 et seq.).
Members of non-governmental organisations,
journalists, members of the political opposition, victims and their relatives,
witnesses and lawyers, relatives of armed rebels or of members of the security
services, young religious men and internally displaced persons were considered to
be those most at risk of being subjected to serious human rights violations in
the region. Furthermore, returnees from abroad were, according to a member of Memorial,
at particular risk. They were under suspicion of having fled because of their
membership of the armed opposition and of having returned with considerable
financial resources.
In this context the report referred to a letter from
the Austrian office of the United Nations High Commissioner for Refugees (“the UNHCR”)
of 7 April 2009 that stated, as regards asylum requests by refugees from
Chechnya, that while the military and security situation in Chechnya had
significantly improved, there were still instances of human-rights violations
that could lead to well-founded asylum requests by Chechens. Such requests
should therefore be fairly and efficiently examined by the authorities. As
regards those who had already been recognised as refugees, the UNHCR recommended
that they should in any event be able to keep their legal status. Any return to
the Russian Federation should be done on an exclusively voluntary basis (see
page 20, including a link to the cited document by the UNHCR office in Austria).
2. More recent country information
The Court summarised newer relevant country
reports only recently in its judgement Bajsultanov v. Austria (see Bajsultanov
v. Austria, no. 54131/10, §§ 38 et
seq, 12 June 2012). Where available, updated information once more depicts the
following situation:
(a) US State Department Human Rights Report on Russia
2011, dated 24 May 2012
The report for 2011 identified as one of the
most significant problems during that year in its executive summary that the
rule of law was particularly deficient in the north Caucasus, where the
conflict between the government and insurgents, Islamist militants and criminal
forces had led to numerous human rights abuses by security forces and
insurgents, who were reportedly engaging in killing, torture, physical abuse
and politically motivated abductions. In addition, the government of Ramzan
Kadyrov in Chechnya was continuing to violate fundamental freedoms, engage in
collective retribution against families of suspected militants, and foster an
overall atmosphere of fear and intimidation.
More precisely, the report stated under the
heading “Use of Excessive Force and Other Abuses in Internal Conflicts” that
violence was continuing in the north Caucasus republics, driven by separatism,
inter-ethnic conflict, jihadist movements, vendettas, criminality and excesses
by security forces. Dagestan continued to be the most violent area in the north
Caucasus; Kabardino-Balkaria also saw an increase in violence compared with the
previous year, while violence continued to decrease in Chechnya, Ingushetia and
North Ossetia.
It further noted that government personnel,
rebels and criminal elements were continuing to engage in abductions in the north
Caucasus. The head of the prosecutor general’s office for the north Caucasus
stated in June that more than 2,100 disappearances remained unsolved in the north
Caucasus republics. Security forces in Chechnya, Dagestan and Ingushetia
frequently abducted or detained individuals for several days without immediate
explanation or charge. Human rights groups believed the number of abductions was
under-reported because victims’ relatives were reluctant to complain to
authorities due to fear of reprisals. Generally, there was no accountability
for government security personnel involved in abductions. Memorial reported at
the beginning of the year that at least eight Russian citizens from the north Caucasus had been kidnapped since September 2010. According to Caucasian Knot, in the first
eleven months of 2011 there were sixty-four disappearances, twenty-eight of
which took place in Dagestan, twenty in Chechnya, thirteen in Ingushetia and
three in Kabardino-Balkaria. Human rights groups alleged that security forces
under the command of Kadyrov played a significant role in abductions, either on
their own initiative or in joint operations with federal forces, including
abductions of family members of rebel commanders and fighters.
Under the heading “Physical abuse, punishment
and torture” the paper mentioned that armed forces and police units in the
region reportedly abused and tortured both rebels and civilians in holding
facilities. The burning of homes of suspected rebels, a mechanism of collective
punishment in use since 2008, was reportedly continuing.
(b) Amnesty International Annual Report 2012 - Russian Federation (undated)
As regards the security situation in the north Caucasus, the report found that it remained volatile, and serious human rights abuses were being
committed by both armed groups and security officials. The rapid post-conflict
reconstruction of Chechnya continued with high levels of federal funding,
though unemployment remained a problem. Activity by armed groups declined
compared to other regions in the north Caucasus. Law-enforcement operations
continued to give rise to reports of serious human rights violations. In a
letter to the human rights NGO The Interregional Committee Against Torture, a
senior Chechen prosecutor acknowledged that investigations of enforced
disappearances in Chechnya were ineffective.
(c) Human Rights Watch, World Report Chapter: Russia
2012, dated January 2012
As regards the north Caucasus the report stated
that according to official statements, the number of insurgent attacks in the north
Caucasus doubled in 2010 compared to 2009. In 2011 the Islamist insurgency
remained on the rise, especially in the Republic of Dagestan. The authorities’
use of torture, abduction-style detention, enforced disappearances and
extrajudicial killings in the course of their counter-insurgency campaign,
coupled with impunity for these abuses, had antagonised the population of the north
Caucasus.
Chechen law-enforcement and security agencies
under Ramzan Kadyrov’s de facto control were continuing to resort to
collective punishment of relatives and suspected supporters of alleged
insurgents. Memorial documented eleven abductions of local residents by
security forces between January and September 2011. Five of those abducted
subsequently “disappeared”.
Increasingly, victims refused to speak about
violations due to fear of official retribution. In a letter to a Russian NGO in
March 2011 federal authorities stated that police in the Chechen Republic
sabotaged investigations of abductions of local residents, and sometimes
covered up for perpetrators. The letter marked the first public acknowledgment
of the importance of federal investigative authorities in investigating abuses
in Chechnya.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE
CONVENTION
The applicant complained that removing him to Russia would violate Articles 2 and 3 of the Convention.
The Court decides to examine the applicant’s
complaint under Article 3 of the Convention alone, which provides as
follows:
“No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
A. Admissibility
The Government submitted that the complaint was
inadmissible for non-exhaustion of domestic remedies, since the applicant had
failed to inform the domestic authorities of his deteriorating psychological
health and to provide the authorities with the medical information he had
submitted to the Court.
The applicant contested that view, referring to
the fact that the documents regarding the applicant’s mental health provided to
the Court all originated from a time after the asylum proceedings in Austria had ended. In fact his health had deteriorated only after the dismissal of his
asylum request. Furthermore, the Government’s argument regarding the admissibility
of the complaint ignored the fact that the applicant also, and most
importantly, feared that he would be subjected to ill-treatment and persecution
if he returned to Russia.
Firstly, the
Court notes that the objection clearly can only refer to one of the two
complaints lodged by the applicant under Article 3 of the Convention, namely
the complaint in relation to his mental health. The Court is of the opinion
that the objection therefore does not refer to the complaint concerning a
perceived risk of persecution of the applicant if he were returned to Russia (see paragraphs 64 and 65 below).
. Secondly, the Court confirms that
the material provided by the applicant to the Court concerning his
psychological health dates from after the domestic proceedings had ended.
. Finally, and as regards the merits
of the objection, the Court reiterates that according to its settled case-law the
existence of a risk to an applicant under Article 3 of the Convention must be
assessed by the Court primarily with reference to those facts which were known
or ought to have been known to the Contracting State at the time of expulsion.
However, if the applicant has not yet been expelled when the Court examines the
case, the relevant time will be that of the proceedings before the Court (see,
among other authorities, Saadi v. Italy [GC], no. 37201/06, § 133,
ECHR 2008, and A.L. v. Austria, no. 7788/11, § 58, 10 May 2012). If
therefore the Court, according to its own case-law, can take material and
events that date from a time after the domestic proceedings had ended into
account when assessing the applicant’s situation in the light of Article 3
pending an expulsion from the respondent State, the applicant’s submissions in
that regard cannot be deemed to render a complaint inadmissible for
non-exhaustion of domestic remedies. The Court therefore rejects the Government’s
objection.
It further notes that the whole of the complaint
below is not manifestly ill-founded within the meaning of Article 35 §
3 (a) of the
Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant reiterated that his father, who
had been an officer in the Chechen security services, had been killed before
his eyes in 2001 and that he himself had been arrested four times and only
released after the payment of a ransom. Furthermore, he had been brutally beaten
and injured during an identity check by Russian soldiers. The applicant’s
mother had been granted asylum in Austria solely on the basis that her husband
had been killed and that her son, the applicant, had been arrested, threatened,
beaten and injured. The applicant also asserted that he had withdrawn his
appeal on the basis of wrong legal advice at the time and would have, in all
probability, been awarded the same status as his mother if his appeal
proceedings had continued. The authorities conducting the subsequent asylum
proceedings should have known on the basis of the applicant’s mother’s asylum
award that the dismissal of the applicant’s asylum request had been unlawful
and wrong. The applicant claimed that, due to the events described above, he
would be at real risk of being arrested and ill-treated if he returned to Russia.
Furthermore, the traumatic events suffered in Russia had led to post-traumatic stress disorder and lasting reactive depression, and the applicant’s
mental health would deteriorate if he returned to Russia, especially in view of
the fact that the negative asylum decisions had already had a detrimental
effect on the applicant’s mental health.
The Government contested the applicant’s
arguments and stated that it was first and foremost for the asylum-seeker to
bring forward all arguments and reasons in the domestic proceedings to show that
he was at real risk of being subjected to treatment contrary to Article 3 of the
Convention if expelled.
That being said, the Government asserted that
the applicant’s reasons for leaving Chechnya had been thoroughly and carefully
examined by the Federal Asylum Office in the first set of proceedings and had
been found unconvincing. The applicant had not brought forward any relevant new
information in the second set of proceedings. Furthermore, the country reports
consulted by the authorities had not warranted, at the relevant time, the
granting of subsidiary protection in the applicant’s case.
As regards the applicant’s state of health, the
Government further observed that the applicant himself had stated in the
proceedings before the Federal Asylum Office on 5 January 2011 that he was not
taking any medication. Therefore, the Federal Asylum Office had rightly assumed
that, in the absence of any information about possible health problems, the
applicant would not suffer any damage to his health if he returned to Russia. Finally, the applicant had never informed the authorities that his mental health was
deteriorating.
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 monitor the entry, residence and removal of aliens (see,
among many other authorities, Hilal 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
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 Soering
v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161 and Ahmed,
cited above, § 39). Furthermore, the prohibition of
torture and of inhuman or degrading treatment or punishment is absolute,
irrespective of the victim’s conduct (see Chahal v. the United
Kingdom, 15 November 1996, § 79, Reports 1996-V, and Saadi,
cited above, § 127).
The Court further observes that, having regard
to the fact that Article 3 enshrines one of the most fundamental values of
a democratic society, there must necessarily be rigorous scrutiny of an
individual’s claim that his or her deportation to a third country will expose
that individual to treatment contrary to Article 3 (see Jabari v. Turkey,
no. 40035/98, § 39, ECHR 2000-VIII, mutatis mutandis M.S.S.
v. Belgium and Greece [GC], no. 30696/09, § 293, ECHR 2011 and, most
recently, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 133, ECHR 2012).
(b) Application
of the above principles to the present case
First, examining the applicant’s asylum
proceedings, the Court notes that the applicant had consistently submitted to
the Austrian authorities in the first and subsequent proceedings that he feared
persecution if returned to Russia, because of his father’s role in the Chechen
security services and his murder in 2001. He further claimed to have been
arrested four times, released against ransom, threatened and at least once
severely beaten in the course of an identity check in 2004. The Court observes
that in view of the information obtained by the Court proprio motu (see H.L.R.
v. France, 29 April 1997, § 37, Reports 1997-III, and Hirsi
Jamaa and Others, cited above, § 116)
as well as the country report information available to and used by the domestic
authorities at the time of their assessment of the applicant’s subsequent
asylum request, it has no doubt that the applicant’s claim of a real risk of
persecution upon a return to Russia already had, prima facie, some weight. All
the materials consulted reported a deterioration in the general security
situation in the North Caucasus region in the year 2009 and serious human
rights violations throughout the region (see paragraphs 17 and 34-46 above).
. The Court reiterates that the
applicant relied on the same reasons for flight as his mother. After the
Federal Asylum Office had reviewed the applicant’s mother’s asylum request, she
had maintained the original flight story in her appeal proceedings and had been
awarded the status of a recognised refugee in 2009 after the Asylum Court had considered that story to be credible and convincing and that there was a
considerable risk of persecution for her. However, in the applicant’s
subsequent asylum proceedings, the authorities stated that his reasons for
flight had been sufficiently thoroughly dealt with in his first proceedings,
and continued to dismiss his request as res judicata. In this context
the Court observes that it follows from the Federal Asylum Office’s decision of
11 January 2011 (see paragraph 17 above) and from the Asylum Court’s
decision of 1 April 2011 (see paragraph 20 above) that the asylum authorities
had been aware of the applicant’s mother’s asylum status in Austria. However,
it also follows from the facts of the case that, in the applicant’s subsequent
proceedings, the domestic authorities did not examine the connections between his
and his mother’s proceedings and any possible similarities or potential distinctions
of these two cases.
. Furthermore, the Court notes that
the Government has not brought forward any argument in their submissions to the
Court as regards the discrepancy between the assessment of the applicant’s
subsequent asylum request and his mother’s status as a recognised refugee. The
Government asserted that the applicant’s claims had been thoroughly examined in
the first asylum proceedings conducted by the Federal Asylum Office and found
unconvincing. The Court finds however that that argument does not take into
account that the first asylum decision rendered in respect of the applicant’s
mother had been overturned by the Asylum Court, and that her story, which is
the same as the applicant’s, was found not only convincing, but credible after
an oral hearing and witness statements.
. Having regard to the
foregoing, the Court is not persuaded that the applicant’s grievance was
thoroughly examined by the domestic authorities, and has accordingly to assess
whether there exists a real risk that the applicant would be subjected to
treatment contrary to Article 3 if expelled to Russia.
Since the applicant has not yet been removed
from Austria, the relevant time to examine this question is in the proceedings
before the Court (see paragraph 62 above).
As regards the applicant’s individual situation,
the Court reiterates that the triggering event of the applicant’s and his
mother’s flight, namely the position of the applicant’s father in the security
services and his murder, had already been considered credible and convincing in
the applicant’s mother’s asylum proceedings in Austria. In view of the fact
that the domestic authorities are much
better placed to evaluate the statements and evidence brought directly before
them (see, mutatis mutandis, S.S. v. the United Kingdom (dec.),
no. 12096/10, § 77, 24 January 2012), the Court has no reason to doubt the
assessment by the Asylum Court of the credibility of the applicant’s mother’s -
and thus the applicant’s - reasons for flight. The Court further observes that
the applicant has also provided it with a diagnostic letter based on a CT scan
that showed old facial bone conversions corresponding with the applicant’s own account
of having been subjected to beatings.
. Consequently, the Court notes that
it is in a position to assess the applicant’s individual risk factors on the
basis of the domestic asylum proceedings for the applicant’s mother’s asylum
request. It notes that not only did the domestic authorities find the applicant’s
mother’s flight story convincing and credible, they also awarded her the status
of a recognised refugee and thus established that she was at real risk of
persecution solely because of the former position and murder of her husband.
There is no indication in the documents before the Court that the applicant,
who relied and still relies on the same reasons for flight, would be at a lesser
risk of persecution upon a return to Russia than his mother, as a family member
of his late father. The Court further observes that the domestic authorities
excluded an alternative for the applicant’s mother to stay in other parts of Russia. Again, there is no basis for the Court to believe the assessment result to be
different for the applicant himself. And finally, the Court also notes that the
applicant’s mother was awarded her title as a recognised refugee in May 2009.
The Court finds that the time elapsed since that decision is not of such a length
as to lead automatically to the drawing of a conclusion to the contrary.
. Overall, and as regards the
applicant’s individual risk assessment, the Court finds that there is a strong
indication that the applicant would be at real risk of being subjected to
treatment contrary to Article 3 of the Convention if removed to Russia. The Court will now turn to the general security situation and examine whether recent
general developments in Chechnya might change that assessment substantially.
The Court firstly reiterates that it has found
violations of Articles 2 or 3 of the Convention in numerous judgments in
respect of disappearances and ill-treatment in Chechnya (see, among others, Imakayeva
v. Russia, no. 7615/02, ECHR 2006-XIII (extracts); Alikhadzhiyeva
v. Russia, no. 68007/01, 5 July 2007; Sambiyeva v. Russia, no. 20205/07, 8 November 2011; Chitayev
and Chitayev v. Russia, no. 59334/00, 18 January 2007; and Khadisov and
Tsechoyev v. Russia, no. 21519/02, 5 February 2009). Although these
judgments relate to events dating back several years, they provide a general
background for the Court’s assessment of the present application.
As regards the most recent developments, the
Court, referring to country information obtained proprio motu, observes
that, whereas the reports consulted showed that the activity of armed groups
and the general level of violence in Chechnya had decreased in comparison with
the development in Dagestan, the information nevertheless still provided a picture
of regularly occurring human rights violations committed by both the rebel
groups and the security forces and of a climate of impunity and lack of effective
investigations of disappearances and acts of ill-treatment. The reports also
still referred to the practice of reprisals and collective punishment of
relatives and suspected supporters of alleged insurgents (see the summaries in
the paragraphs 47-55 above).
While the Court acknowledges that general outbreaks
of violence and of serious human rights abuses seem to be decreasing in number
in Chechnya, occurrences of targeted human-rights violations, such as
abductions, killings or beatings, still seem to be happening on a regular
basis. The Court therefore does not find that the reports consulted - including
the most recent available ones - are likely to dispel the concerns raised as
regards the applicant’s individual risk of persecution if he returned to Russia.
In the light of the foregoing the Court comes to
the conclusion that it has been demonstrated that there are substantial grounds
to believe that the applicant would face a real and individual risk of being
subjected to treatment contrary to Article 3 if he returned to Russia.
The Court now turns to the applicant’s complaint
as regards the implications removing him to
Russia could have for his mental health. In this context, the Court
reiterates its findings in the case of N. v. the United Kingdom (see N.
v. the United Kingdom [GC], no. 26565/05, ECHR 2008) that concluded that
the Court’s principles, as applicable to such a complaint, were as follows in
its paragraphs 42 to 44:
“42. In summary, the Court observes that since D.
v. the United Kingdom [see D. v. the United Kingdom, 2 May 1997, Reports
of Judgments and Decisions 1997-III] it has consistently applied the
following principles.
Aliens who are subject to expulsion cannot in principle claim
any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and
services provided by the expelling State. The fact that the applicant’s
circumstances, including his life expectancy, would be significantly reduced if
he were to be removed from the Contracting State is not sufficient in itself to
give rise to breach of Article 3. The decision to remove an alien who is
suffering from a serious mental or physical illness to a country where the
facilities for the treatment of that illness are inferior to those available in
the Contracting State may raise an issue under Article 3, but only in a very
exceptional case, where the humanitarian grounds against the removal are
compelling. In the D. case the very exceptional circumstances were
that the applicant was critically ill and appeared to be close to death, could
not be guaranteed any nursing or medical care in his country of origin and had
no family there willing or able to care for him or provide him with even a
basic level of food, shelter or social support.
43. The Court does not exclude that there may be
other very exceptional cases where the humanitarian considerations are equally
compelling. However, it considers that it should maintain the high threshold
set in D. v. the United Kingdom and applied in its
subsequent case-law, which it regards as correct in principle, given that in
such cases the alleged future harm would emanate not from the intentional acts
or omissions of public authorities or non-State bodies, but instead from a
naturally occurring illness and the lack of sufficient resources to deal with
it in the receiving country.
44. Although many of the rights it contains have
implications of a social or economic nature, the Convention is essentially
directed at the protection of civil and political rights (Airey v. Ireland, judgment
of 9 October 1979, Series A no. 32, § 26). Furthermore, inherent in the
whole of the Convention is a search for a fair balance between the demands of
the general interest of the community and the requirements of the protection of
the individual’s fundamental rights (see Soering v. the United Kingdom,
judgment of 7 July 1989, Series A no. 161, § 89). Advances in medical science,
together with social and economic differences between countries, entail that
the level of treatment available in the Contracting State and the country of
origin may vary considerably. While it is necessary, given the fundamental
importance of Article 3 in the Convention system, for the Court to retain a
degree of flexibility to prevent expulsion in very exceptional cases,
Article 3 does not place an obligation on the Contracting State to
alleviate such disparities through the provision of free and unlimited health
care to all aliens without a right to stay within its jurisdiction. A finding
to the contrary would place too great a burden on the Contracting States.”
The Court accepts that the applicant was suffering,
according to the medical letters he has provided, from post-traumatic stress
disorder and depression. It further acknowledges that the doctors treating him recommended
ongoing pharmacological and psychotherapeutical treatment. However, the Court
is mindful of the high threshold set in the Court’s jurisprudence as regards
the very exceptional circumstances required to raise an issue under Article 3
of the Convention when it comes to access to health care in removal cases (see
also, additionally to the quotation in the paragraph above, Bensaid v. the United Kingdom, no. 44599/98, § 40, ECHR 2001-I). In the present case the
Court is not convinced that the applicant’s mental health status and its
alleged expected deterioration in the event of his being removed to Russia amount
to such “very exceptional circumstances” and could thus trigger the application
of Article 3 of the Convention.
However, the Court reiterates its findings in
paragraph 83 above as regards a real and individual risk that the applicant would
be subjected to treatment within the meaning of Article 3 of the Convention,
and, in the light of its overall examination of the applicant’s complaint under
that Article, draws the conclusion that there would be a violation of Article 3
of the Convention if the applicant was removed to Russia.
II. 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 removal to Russia 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 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. The parties’ submissions
The applicant emphasised that his wife had been
a recognised refugee in Austria since 2004 and that his two children, who were
both born in Austria, also had resident status under the asylum law. He claimed
that removal to Russia would mean de facto permanent separation from his
core family in Austria, and alleged that the Austrian authorities had not
sufficiently balanced the conflicting interests involved in the decision. With
regard to his criminal convictions, the applicant contended that since his last
conviction in 2008 he had not been implicated in any other criminal or police
investigations and had a very good future prognosis. Expulsion would therefore
be at variance with his right to respect for his family life.
The Government contested those arguments and emphasised
that the applicant had not demonstrated that he was integrated into Austrian
society, and also emphasised that he had serious criminal convictions in Austria. Furthermore, the applicant had started a family without ever having permanent
residence status in Austria. He and his wife must therefore have been aware of
the applicant’s precarious residence status there.
2. The Court’s assessment
The Court reiterates its finding that removing the
applicant to Russia would violate Article 3 of the Convention (see paragraph 86
above). Having no reason to doubt that the respondent Government would comply
with the present judgment, it considers that it is not necessary to examine the
hypothetical question whether, in the event of the applicant’s removal to Russia,
there would also be a violation of Article 8 of the Convention (see Saadi,
cited above, § 170).
III. 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 § 4) must
continue in force until the present judgment becomes final or until the Court
takes a further decision in this connection (see operative part).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 10,000 euros (EUR) in
respect of non-pecuniary damage.
The Government claimed that the applicant had not
sufficiently demonstrated that there had been damage or that there was a causal
link between the alleged damage and the violation of the Convention.
The Court considers that the finding that the
applicant’s removal, if carried out, would breach Article 3 of the Convention
constitutes sufficient just satisfaction for non-pecuniary damage sustained by
the applicant (see Saadi, cited above, § 188).
B. Costs and expenses
The applicant also claimed EUR 6,114.96 for
costs and expenses incurred before the domestic authorities and before the
Court. This sum includes value-added tax (VAT).
The Government firstly contended that the amount
claimed by the applicant and the calculation breakdown provided in this regard
did not correspond. They further point out that domestic fee rates would only
serve as indicators for the award of reimbursement of procedural costs. As
regards the amount claimed for costs incurred in the proceedings before the
Court, the Government found them to be excessive.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
On the basis of the calculation breakdown the
applicant has provided, he appears to be claiming EUR 2,128.98 for costs and
expenses incurred before the domestic authorities and EUR 2,902.25 for those
incurred before the Court. These sums include VAT. In the present case, regard being
had to the documents in its possession and the above criteria, the Court
considers it reasonable to award these sums, so a total of EUR 5,031.23
covering costs under all heads. This sum includes VAT.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that the applicant’s removal to Russia would violate Article 3 of the Convention;
3. Holds that there is no need to examine the
complaint under Article 8 of the Convention;
4. 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 a further order
is made;
5. Holds that the finding of a violation
constitutes sufficient just satisfaction for non-pecuniary damage sustained by
the applicant;
6. Holds
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,031.23 (five thousand and thirty-one
euros and twenty-three cents) in respect of costs and expenses. This sum
includes VAT;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 March 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
