ECtHR - I.K. v Austria, Application No. 2964/12

Facts:

The applicant, I.K., is a Russian national of Chechen origin who lives in Vienna. He requested asylum in Austria in November 2004, claiming that he and his family had been persecuted in Chechnya, because his father, who was shot before his eyes, had worked in the security services of former President Maskhadov, a separatist leader. The applicant also alleged that he had been arrested and subjected to ill-treatment. His request having been dismissed, he initially withdrew his appeal, but lodged a new asylum request in 2009, which was eventually dismissed in June 2011. Relying on Article 2 (right to life) and Article 3 (prohibition of torture and of inhuman or degrading treatment), Mr K. complained that his removal to Russia would expose him to the risk of ill-treatment. He argued in particular that his mother, who arrived in Austria together with him, was granted asylum in 2009 based on the fact that her husband had been killed and that her son, the applicant, had been arrested, threatened and beaten in Chechnya. Further relying on Article 8 (right to respect for private and family life), Mr K. also complained that his removal to Russia would separate him from his wife and children, who lived in Austria.

Decision & reasoning:

The Court decided to examinethe applicant’s complaint under Article 3 of the Convention alone. It observed that in view of the information obtained 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 had 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 deterioration in the general security situation in the North Caucasus region in the year 2009 and serious human rights violations throughout the region.

The applicant relied on the same reasons for flight as his mother, who had been awarded the status of a recognised refugee in 2009 after the Asylum Court had considered that story to be credible and that there was a considerable risk of persecution for her. The asylum authorities had been aware of the applicant’s mother’s asylum status in Austria, but did not examine the connections between his and his mother’s proceedings and any possible similarities or potential distinctions of these two cases. The Court found that applicant’s grievance wasn’t thoroughly examined by the domestic authorities, and decided to assess the existence of a real risk of treatment contrary to Article 3 if expelled to Russia. The Court noted that it was 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.

The Court came to the conclusion that there were 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 also accepted that the applicant was suffering, according to the medical evidence from post-traumatic stress disorder and depression. However, there is a 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. Therefore it found that the applicant’s mental health status and its alleged expected deterioration in the event of his being removed to Russia could not amount to such “very exceptional circumstances” and thus trigger the application of Article 3 of the Convention.

Outcome:

Violation of Article 3 of the Convention in case of removal to Russia.

With a view to the above the complaint under Article 8 of the Convention was not examined.

The Court also found that a violation constituted sufficient just satisfaction for non-pecuniary damage sustained by the applicant.

Observations/comments:

The Court indicated the Austrian government not to expel the applicant until the judgment becomes final or until a further order is made under Rule 39 of the Rules of Court.

Other sources:

• US State Department Human Rights Report on Russia 2011, dated 24 May 2012;
• Amnesty International Annual Report 2012 - Russian Federation;
• Human Rights Watch, World Report Chapter: Russia 2012, dated January 2012