FIRST SECTION
DECISION
Application no. 49602/09
Aslan NURMATOV
against Austria
The European Court of Human Rights (First Section), sitting on 18 September 2012 as a Committee composed of:
Peer Lorenzen, President,
Elisabeth Steiner,
Khanlar Hajiyev, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 7 September 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Aslan Nurmatov, is a Russian national, who was born in 1972 and lives in Leonding. He was represented before the Court by his sister, Ms L. Nurmatova, who is living in Leonding.
The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.
The applicant, who is of Chechen origin, was granted asylum in Austria in 2004.
Following two convictions, one for infliction of bodily harm in 2005 and one for two counts of rape in 2008, the applicant’s asylum status was withdrawn. The applicant did not appeal and the decision of the Federal Asylum Office of 26 May 2008 became final.
On 20 March 2009 the Federal Asylum Office held that the applicant was not entitled to subsidiary protection and ordered his expulsion to Russia. It found that his submissions in respect of any risk of ill-treatment were not credible. Furthermore, in respect of the applicant’s family life in Austria the Federal Asylum Office noted that the applicant’s ex-wife, his current partner, a woman of Chechen origin who was bound to a wheelchair and dependent on permanent care, and his children were living in Austria. However, one son was living in a children’s home, the other children lived with his sister, who also had custody of them. His partner received the care she needed not from the applicant but from third persons. While accepting that the applicant’s expulsion would interfere with his family life, the Federal Asylum Office found that the public interest in his expulsion outweighed the applicant’s rights under Article 8 of the Convention.
On 19 December 2009 the Asylum Court upheld the decision of the Federal Asylum Office.
On 22 February 2010 the Constitutional Court refused to deal with the applicant’s complaint.
An application to the Court for an interim measure under Rule 39 of the Rules of Court was refused on 29 January 2010.
In 2010 the applicant was diagnosed with liver cancer and was in hospital from 23 August to 7 September 2010.
On 9 September 2011 the application was communicated to the respondent Government with a question as to the current situation of the applicant’s stay in Austria and a further question in respect of Article 8 of the Convention.
According to the information provided by the Government the applicant had to undergo surgery in November 2010, having part of his liver removed. Any measures to be taken by the aliens’ police were suspended. The applicant is still living in Austria with his wife and their youngest son. Proceedings relating to the applicant’s request for a residence title on humanitarian grounds are currently pending.
COMPLAINTS
The applicant complained under Articles 2 and 3 of the Convention that upon return to Chechnya, his life would be in danger and he would run the risk of being tortured or submitted to inhuman and degrading treatment.
Furthermore, the applicant complained under Article 8 that he would be separated from his family. He submitted in particular that his wife was dependent on him as she was severely handicapped.
THE LAW
By letters of 16 September and 4 November 2011 the applicant was informed that the application had been communicated to the Government and he was instructed to appoint a lawyer as his representative.
The applicant failed to appoint a lawyer. He continued to send letters in Russian to the Court in which he repeated his complaints.
By letter of 2 January 2012 a time-limit was set to the applicant to appoint a lawyer. He was cautioned that if he failed to do so, the application would not be examined by the Court. This letter was written in English, with a translation into Russian. It also contained a warning that all future correspondence would be in English.
The applicant did not appoint a lawyer.
On 23 February 2012, following the receipt of the Government’s observations, the applicant was asked to submit observations in reply together with any claims for just satisfaction by 5 April 2012. He was again reminded that he was required to be represented by a lawyer.
The applicant failed to appoint a lawyer and did not submit any observations.
By registered letter of 2 May 2012 a copy of the letter of 23 February 2012 was sent to the applicant with a warning that failure to react could lead the Court to strike the case off its list. The letter was returned by the postal service with the remark “addressee has moved”. However, the applicant has not informed the Court of any change of address.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
André WampachPeer Lorenzen
Deputy RegistrarPresident
Full & Egal Universal Law Academy