Credit: Djtm
Last week, the European Court of Human Rights (ECtHR) announced its decision in the case of I.K. v. Austria, app. no. 2964/12, Judgment of 28 March 2013, in which the court considered the conventionality of Austria’s denial of asylum to a Russian national of Chechen origin whose father had worked for former Chechen separatist leader Aslan Maskhadov. The court held, unanimously, that there would be a violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European Convention on Human Rights if the applicant were removed to Russia because of his past persecution and the ongoing risk of collective punishments by security forces which target those affiliated with separatists.
In April 2004, the applicant left Chechnya for Austria with his mother. I.K. claimed that he and his family had been persecuted by the Russian government in Chechnya due to the fact that his father had worked for a Chechen separatist leader. As a result, I.K. was the alleged victim of repeated arrests and beatings at the hands of authorities. In particular, the Court noted:
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.
I.K. v. Austria, para. 9.
Both I.K. and his mother sought asylum soon after their arrival in Austria, but both their requests were denied. I.K. lodged a new asylum request in June 2009, resulting in an additional denial two years later. I.K.’s mother was eventually granted asylum because the Austrian Asylum Court (Asylgerichtshof ) found she could be at risk, in light of her husband’s activities and the fact that he had been killed. However, the Federal Asylum Office (Bundesasylamt) denied I.K. asylum, finding he had failed to demonstrate the existence of real risk and that his story was “unconvincing” and contradictory.
The ECtHR found there was no indication that I.K. would be at a lesser risk of persecution upon return to Russia than his mother, who had been granted asylum in Austria, and concluded I.K. would be at “real risk” of being subjected to treatment contrary to Article 3 of the Convention if expelled from Austria. Id., para. 79. The court also noted that the Austrian government had not identified any discrepancies it found with I.K.’s summary of events and accordingly, was “not persuaded the applicant’s grievance was thoroughly examined by the domestic authorities.” I.K. v. Austria, para. 75. Based on I.K.’s history, including his father’s murder, and the fact that his mother had been granted asylum on the same grounds, the Court found 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.” Id., para. 79.
“Collective Punishment” of Separatists’ Family Members in Chechnya
The Court then “turn[ed] to the general security situation [to] examine whether recent general developments in Chechnya might change that assessment substantially.” Id. In assessing the risk of harm to the applicant in view of current human rights conditions in Chechnya, the European Court looked to reports from governmental and non-governmental actors. The ECtHR cited a 2010 U.S. State Department Human Rights Report on Russia which described the government’s forceful response to Chechen rebels as “excessive” and “abusive.” Reports by human rights organizations, which the Court examined propio motu, depicted ongoing violations against those affiliated with separatists, including their family members. In particular, the reports:
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.
I.K. v. Austria, para. 81. The types of “collective punishment” reported by Human Rights Watch and the U.S. State Department included the abduction of family members and the burning of family homes by security forces, sometimes in conjunction with federal Russian agents. Id., paras. 50-54. On the basis of this information, the ECtHR found “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.” Id., para. 83.
The ECtHR Chamber judgment is not final in this case. Any party may request that the case be referred to the Grand Chamber of the court within three weeks of the March 28 ruling. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.
The European Court’s Non-Refoulement Jurisprudence
Though the Convention does not govern extradition, expulsion and asylum law, States have an obligation in these contexts to respect and ensure the rights guaranteed by the Convention, as explained in Vilvarajah and Others v. the United Kingdom, app. no. 45/1990/236/302-306, Judgment of 26 September 1991, para. 102. In its decision in Soering v. United Kingdom, app. no. 14038/88, Judgment of 7 July 1989, the European Court specified that when a State party to the European Convention agrees to return a person to another country, this decision “may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.” Id., para. 91.
In the often-cited decision in Chahal v. United Kingdom, app. no. 22414/93, Judgment of 15 November, 1996, the Strasbourg Court dealt with States’ non-refoulement obligation in the context of militant separatist groups. In that case, the court held that an advocate of the Sikh separatist cause, who the United Kingdom sought to deport on national security grounds, faced a real risk of ill-treatment if he were to be removed to India. Similar to its analysis in I.K. v. Austria, the European Court in Chahal looked to several reports by governmental and non-governmental actors, including those of the United States Department of State, the United Nations Special Rapporteur on torture, and Amnesty International. Many of these reports emphasized the fact that Sikh separatists still faced a serious risk of “disappearance,” detention without charge or trial, torture and extrajudicial execution, frequently at the hands of the Indian police. Given that no evidence of substantial governmental reform had surfaced since the publication of these reports, the ECtHR was not satisfied by the assurances given by the Indian government and ruled Article 3 would be violated if the deportation order to India were to be enforced.
Additional ECtHR cases involving the extradition or deportation of persons affiliated with political opposition or illegal groups can be found in the ECtHR’s Factsheet – Expulsions and Extraditions.