ECtHR releases decision in Bajsultanov v. Austria (no. 54131/10) [Articles 3 and 8 ECHR]

Friday, October 4, 2013

The applicant, Ruslan Bajsultanov, is a Russian national of Chechen origin who was born in 1980. He arrived in Austria with his family in July 2003 claiming asylum following his narrow escape from a “cleaning operation” carried out against him in Chechnya by mercenary soldiers. He alleged that he was wanted due to his support of Chechen fighters from 1994 to 1996. He was granted asylum in July 2005 which was, however, lifted in October 2008 and his expulsion ordered following three convictions for various serious offences, including aggravated bodily harm. He was released having served his sentences and is currently living with his wife and two children in Graz (Austria). Relying on Article 3 (prohibition of inhuman or degrading treatment), he alleged that, if expelled to Russia, where he is considered to be a Chechen rebel, he would be at real risk of detention, torture and/or disappearance. He also complained that his expulsion would separate him from his wife and two children who had independent asylum status in Austria, in breach of Article 8 (right to respect for private and family life).

The Court found:

- No violation of Art. 3:
The Court, turning to the parties arguments concerning the definition of the term “particularly serious offense” as used in the Austrian 2005 Asylum Act and in relevant case-law of the Administrative Court, it considered that for the purpose of a complaint lodged under Article 3 of the Convention, the question of the applicability of the relevant provision of the Austrian 2005 Asylum Act for the lifting of an asylum status is redundant: the Court reiterated that Article 3 of the Convention prohibits torture or inhuman or degrading treatment in absolute terms, irrespective of the victim’s conduct, however undesirable or dangerous that might be (see Chahal, cited above, §§ 79 and 80). Therefore, regardless of the definition of a “particularly serious crime” under Austrian law, the actual expulsion of the applicant could still constitute a violation of Article 3 if substantial grounds had been shown for believing that he would be at real and personal risk of being subjected to treatment contrary to that provision. The Court found that in the present case, however, there are no indications of the existence of such substantial grounds and therefore the Court held that the applicant’s deportation to the Russian Federation would not amount to a violation of Article 3 of the Convention. (para. 70-71)

- No violation of Art.8:
The Court considered that in view of the seriousness of the criminal offenses committed by the applicant, his strong ties to his country of origin, his parents and siblings living there and the possibility for the applicant’s wife and children to follow him to Chechnya and to develop a joint family life there, the Austrian authorities have not failed to strike a fair balance between the applicant’s interests in respect of his family life and the public interest in the prevention of disorder or crime and therefore the applicant’s expulsion to the Russian Federation would not amount to a violation of Article 8 of the Convention. (para. 91-92)

-Rule 39 (interim measures)
The Court decided 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 judgment in question becomes final or until further order.

For the full text of the judgment please visit: ECtHR: Bajsultanov v. Austria (no. 54131/10)

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Cessation of protection
Revocation of protection status
Serious non-political crime
Real risk
Individual threat
Inhuman or degrading treatment or punishment
Family unity (right to)
The former Yugoslav Republic of Macedonia