CASE OF BAJSULTANOV v. AUSTRIA
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life) (Conditional)
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
7. The applicant, a Russian national of Chechen origin, was born in 1980 and lives in Graz. 8. The applicant arrived in Austria with his family on 25 July 2003 and lodged an asylum request on the same day. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. On 24 August 2009 the Asylum Court dismissed the applicant’s appeal as unfounded. 25. 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. 26. 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. 27. 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. 28. 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. 29. That decision was served on the applicant’s counsel on 16 March 2010. 30. 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. 31. 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. 32. 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). 33. 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). 34. 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). 35. 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). 36. 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. 37. 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). 38. 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. 39. 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). 40. 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). 41. 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). 42. 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). 43. 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. 44. 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. 45. 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). 46. 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). 47. 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). 48. 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). 49. 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). 50. 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).