HomeArchiv Rechtsprechung → EGMR: 2964/12, I.K. gegen Österreich

EGMR - 28.03.2013 - 2964/12, I.K. gegen Österreich
Thema / LandAbschiebung, Refoulementschutz, Russische Föderation
BeschreibungReales Risiko einer Verletzung des Artikels 3 EMRK bei Abschiebung eines Russischen Staatsangehörigen tschetschenischer Volksgruppenzugehörigkeit in die Russische Föderation; in Tschetschenien finden weiterhin gezielte Menschenrechtsverletzungen statt. Keine ausreichende Auseinandersetzung der österreichischen Behörden mit der Gefahr einer Verletzung des Artikel 3 EMRK aufgrund der Zurückweisung des Folgeantrags des Beschwerdeführers wegen entschiedener Sache, obwohl dessen Mutter aufgrund derselben Fluchtgründe den Status der Asylberechtigten erhalten hatte



1.  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. (...)





A.  The applicant’s asylum proceedings in Austria

2.  The applicant left Chechnya (...) with his mother. They arrived in Austria in November 2004 and lodged an asylum request there.

3.  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.

4.  On 5 March 2007 the Federal Asylum Office (Bundesasylamt) dismissed the applicant’s asylum request as unfounded. (...)


5.  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.

6.  On 12 May 2009 the Asylum Court (Asylgerichtshof) allowed the applicant’s mother’s appeal and granted her the status of a recognised refugee. (...)


7.  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 (...) 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.


8.  On 11 January 2011 the Federal Asylum Office rejected the applicant’s subsequent asylum request as res judicata. (...) 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.

9.  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.

10. (...) 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.

11.  On 1 April 2011 the Asylum Court dismissed the appeal as unfounded. (...)


12.  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 (...)


13.  On 10 June 2011 the Constitutional Court (Verfassungsgerichtshof) dismissed the applicant’s application for legal aid to enable him to lodge a complaint. (...)




14.  The applicant complained that removing him to Russia would violate Articles 2 and 3 of the Convention.

15.  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.”


B.  Merits


2.  The Court’s assessment


72. 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 2011. (...) (...)

73. The Court reiterates that the applicant relied on the same reasons for flight as his mother. (...) 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 the asylum authorities had been aware of the applicant’s mother’s asylum status in Austria. However, (...) 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.


75. (...) [T]he 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.

16.  Since the applicant has not yet been removed from Austria, the relevant time to examine this question is in the proceedings before the Court (…).

17.  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. (…)

18.  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. (...) [T]he 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.

19.  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.


81. (...) As regards the most recent developments, the Court, referring to country information obtained proprio motu, observes that, whereas the reports consulted showed that (...) 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 (...)

82. 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.

20.  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.



1. Declares the application admissible;

2. Holds that the applicant’s removal to Russia would violate Article 3 of the Convention;