ECtHR decision in I.K. v. Austria (no. 2964/12) [Articles 2, 3 and 8 ECHR]

Friday, October 4, 2013

The applicant, Mr. K., is a Russian national of Chechen origin who lives in Vienna. After the killing of his father and after having suffered arrests and beatings by Russian soldiers himself, he arrived in Austria together with his mother in 2004 and requested asylum. Their claims were rejected. However, on appeal his mother was recognized as a refugee. The Austrian Asylum Court found it credible that, in the event of her return to Russia, she would be under threat from the State and third parties owing to the activities of her husband at the secret service of the former separatist president of Chechnya. Mr. K. on his part had withdrawn his appeal and his second asylum application was unsuccessful. In the meantime, Mr. K. married and had two children in Austria. Psychological reports from hospital advised against his removal to Russia. After his application to the European Court of Human Rights, Austria was requested to not remove him under Rule 39 until further notice.

The Court found a violation of Article 3 ECHR if Mr. K. were returned to Russia. The Court observed that the Austrian authorities had given credibility to his mother's claim and not to his, although they had relied on the same reasons. The asylum authorities had not considered the connections between the two cases and the Austrian government had not explained the discrepancies in the final decisions in its submissions before the Court. Therefore, the Court concluded that the Austrian authorities had not thoroughly examined his allegations. The Court had no indication to believe that Mr. K. would be at a lesser risk of persecution upon return than his mother. Furthermore, at the time of his claim, the Austrian authorities had had various country reports at their disposal indicating a deterioration in the security and human rights situation in the North Caucasus, which gave more weight to Mr. K.'s allegations. The Court also relied on the numerous judgments concerning Chechnya where it had found violations of Articles 2 and 3 of the Convention and on international reports to conclude that Mr. K. would face a real and personal risk of being subjected to treatment contrary to Article 3 if removed to Russia. Finally, the Court's indication under Rule 39 must remain in force until the judgment becomes final. The Court did not find it necessary to examine the complaint under Article 8.

The full text of the judgment and a press release are available at the Court's website.

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Assessment of facts and circumstances
Credibility assessment
The former Yugoslav Republic of Macedonia