Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1988 and lives in the town of Nizhniy Novgorod.

On 14 December 2006 the Military Conscription Committee of the Moscow District of the town of Nizhniy Novgorod examined the applicant’s medical condition. Having declared him fit, they conscripted him into the army. The applicant was given the rank of junior sergeant and sent to preparatory Military Unit no. 73864, located in the town of Kovrov in the Vladimir Region.

Six months later, on 28 May 2007, he was transferred to Military Unit no. 34605 of the town of Volgograd of the Volgograd Region.

The applicant submitted that personal relations among the servicemen of the unit were tense and violent. The applicant had panicked and decided to escape.

On 4 June 2007 the applicant and junior sergeant V. ran away from the unit.

The command of the unit launched a search operation to find the fugitives.

On the morning of 5 June 2007 deputy commander major A. and captain K. located and apprehended the applicant and junior sergeant V. close to the nearby village of Stepnoy.

According to the applicant, on their way back to the unit A. and K. had threatened to execute or drown them. The threats had frightened the applicant to such an extent that he decided to escape again.

During a stopover the applicant made another attempt to escape. Shortly thereafter he was caught in a nearby swamp. The escorting officers stripped him of his clothes and put him in the cargo compartment of a military truck which brought both fugitives back to the unit.

On 6 June 2007 the applicant and V. were brought before battalion commander Ch., who lined up the battalion. The applicant and V. ‒ allegedly stripped naked ‒ were made to stand in front of the other servicemen. It does not appear that there were any female service personnel present on this occasion. The Government submitted that the applicant and V. had been wearing military briefs. The battalion commander publicly condemned and reprimanded them.

Thereafter the applicant was brought to the commander’s office and was asked to prepare an explanatory note concerning the events of 4-6 June 2007.

The applicant stated that after he had drafted the explanatory note, the commander had ordered company commander lieutenant S. to load a machine gun with bullets, go outside and execute the applicant. The applicant was taken outside and placed up against a wall. Captain Kar. aimed a machine gun at him. The applicant pleaded for mercy and promised “to become the best sergeant in the unit”, whereupon Kar. brought him back into the commander’s office. At this moment the applicant heard a machine gun being discharged and thought that V. had just been executed.

Some time later the battalion commander ordered officer G. to dress the applicant in a military protection suit. The suit consisted of a mask, protective cloak, rubberized stockings and gloves and was unsuitable for continuous use in hot weather. The applicant’s fellow servicemen then shaved his head and warrant officer G. painted a five-pointed star on his head using brilliant green antiseptic. A fellow serviceman then delivered a few blows to the applicant’s body and head with an army belt buckle. Then another soldier put a leash around his neck and walked him around the training ground. The applicant was also threatened with sexual violence if he ever decided to escape again.

According to the applicant, the following night after lights-out junior sergeant S. and private soldier O. had removed the leash from his neck, attached him to a pole in the centre of the tent which served as their sleeping quarters, and made him read aloud the sergeant’s military manual, using a lighter and a pocket lamp for light. At around 2 a.m. the applicant was further intimidated by S., who told him that his friends in the town of Nizhniy Novgorod would find and rape him when his military service was over.

The applicant stated that the next morning he was again ordered to put on the military protection suit, the collar and the leash and escorted by junior sergeant Zh. for breakfast dressed in this way. He was then taken to the battalion commander. The applicant had asked him for permission to take off the suit, the collar and the leash. The commander said he could do so as soon as he had washed the star off his head. For the next two hours the applicant washed his head in a river flowing nearby, using only his hands and the sand.

On 7 June 2007 ‒ surveillance of the applicant having been relaxed ‒ he escaped and, this time, reached his family in the town of Nizhniy Novgorod.

According to the applicant, after his escape, the battalion commander Ch. had ordered his fellow servicemen to keep silent about the ill-treatment.

On 26 June 2007 the applicant complained of his ill-treatment to the Soldiers’ Mothers Committee of the Nizhniy Novgorod Region («Нижегородский областной комитет солдатских матерей»).

On 27 June 2007 the applicant complained to the Military Prosecutor’s Office of the Nizhniy Novgorod Garrison (“Nizhniy Novgorod Prosecutor’s Office”) about his ill-treatment in the Military Unit. In his claim he provided an account of the alleged events, stating that his fellow servicemen Vl., Kats., Zai., Ryb., Mal. and Fed. could confirm the facts of his ill-treatment and “hazing”.

The Nizhniy Novgorod Prosecutor’s Office opened a preliminary inquiry into his allegations and held that the applicant should be transferred to another military unit pending the outcome of the proceedings.

On 28 June 2007 the Nizhniy Novgorod Prosecutor’s Office ordered an expert psychiatric examination of the applicant.

The expert examination of the applicant was conducted between 4 and 26 July 2007 in Psycho-Neurological Hospital No. 1 of the Nizhniy Novgorod District.

On 21 August 2008 the Military Medical Commission of the Nizhniy Novgorod Garrison diagnosed the applicant with “a personality disorder of the emotional unstable type, with variable amelioration, contracted during his military service” and held that he was “fit with restrictions” for military service.

Owing to the above diagnosis, the applicant was prematurely discharged from the army.

The Nizhniy Novgorod Prosecutor’s Office joined the inquiry proceedings into the applicant’s complaints of 26 June 2007 with the inquiry into similar complaints by junior sergeant V. dated 1 July 2007. The case was then sent for investigation to the Military Prosecutor’s Office of the Volgograd Garrison (“Volgograd Prosecutor’s Office”).

On 16 July 2007 an investigator of the Volgograd Prosecutor’s Office issued a refusal to open a criminal case. In this decision it referred to statements given by the alleged perpetrators, including the battalion commander Ch., deputy commanding officer major A., captain K., lieutenant S., captain Kar., warrant officer G. and junior sergeant Zh., and to the statements of other servicemen who had been questioned concerning the applicant’s allegations. The refusal reads:

“In the course of the inquiry carried out into [the applicant’s] request, the investigating authorities have established the following:

Junior sergeant [V.] claimed that the complaints of 26 June and 1 July 2007 concerning ill-treatment were false. No acts of ill-treatment against him or [the applicant] had taken place either in the period under examination (6 and 7 June 2007) or during their military service in the [Military Unit]. He did not see any injuries such as scratches, bruises or haematomas on [the applicant’s] body. According to junior sergeant [V.], [the applicant] gave the false statements so as to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007. In private conversations [the applicant] had often remarked that he did not want to serve in the army. The simulation of psychiatric problems and the false statements about illtreatment are in the junior sergeant’s opinion no more than a means of avoiding military service. During questioning the latter also stated that [the applicant] had no psychiatric problems and that during his military service he had not shown signs of any unusual behaviour.

Junior sergeant [V.] also stated that on 1 July 2007 during his stay in hospital he had been contacted by [two] representatives of a Russian NGO, “Mothers’ Right” (“Материнское право”). They showed him [the applicant’s] statements of 26 June 2007 and promised to assist with his transfer to a military unit in his place of residence in exchange for giving similar statements capable of confirming [the applicant’s] allegations. As he very much wanted to perform his military service close to his home in the Kaliningrad Region, he accepted their offer. Later he realised that it was a mistake, because he had no intention of slandering anybody. He explained that all the facts mentioned in his [complaints] of 1 July 2007 were false. Neither he nor [the applicant] had been ill-treated by their fellow servicemen. To confirm his statements he presented the business card which the [NGO representative] had given to him ...

The battalion commander [Ch.] stated that the allegations of ill-treatment mentioned in the statements of 26 June and 1 July 2007 were false. He further stated that he had not seen any scratches, bruises or haematomas on [the applicant] or junior sergeant [V.]. Moreover, they had not lodged any complaints about the illtreatment allegedly committed by the servicemen of the [Military Unit]. According to the battalion commander [Ch.], [the applicant] had made up the allegations either to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007, or to avoid military service by way of falsification of his mental problems. He noted that [the applicant] was of sound mind and that he had never shown signs of any unusual behaviour. The battalion commander [Ch.] speculated that [the applicant] simply did not want to continue his military service because it was so hard. According to [Ch.], only negative references could be provided on account of [the applicant’s] personality. For instance, [the applicant] had left his place of service several times without the authorisation of his superiors. Although he followed the orders of his commander, he required constant supervision. He was a sly and dodgy person, who did not understand the meaning of his military duty. During private conversations [the applicant] expressed his intention of leaving the [Military Unit].

Deputy commanding officer major [A.], captain [K.], lieutenant [S.], captain [Kar.] and warrant officer [G.] gave statements which were essentially similar to the statements of the battalion commander [Ch.].

During the inquiry the investigative authorities also questioned [Kats., a witness on the applicant’s behalf]. He stated that [the applicant’s and V.’s] statements of 26 June and 1 July 2007 had been false and that [the applicant] had given them to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007. He also stated that between 20 November 2005 and 27 May 2007 he had served with [the applicant] in the military unit of the Town of Kovrov of the Vladimir Region. During this period [the applicant] ‒ without permission ‒ left the military unit for two weeks. Later, he returned of his own volition and explained that he did not like serving in the army. According to [the applicant’s] confession, he returned only because of his father, with whom he had had an argument [on account of his refusal to serve in the army]. [The applicant] was a smart, sly and a dodgy person who was able to avoid military service by making up a good and credible excuse. [Kats.] stated that [the applicant] was a mentally sound person who did not show signs of unusual behaviour. [The applicant] showed a negative attitude towards his military duty and was an irresponsible person who did not like to work. He did not carry out his commander’s orders promptly and always needed to be under supervision. In private conversations he mentioned that he wanted to leave military service and go to the town of Sochi to earn some money.

The [applicant’s and junior sergeant’s V.’s] fellow servicemen [Mal., Ryb., Zai., Fed., Ost., and junior sergeant Zh.], who were separately interviewed by the investigator, gave similar statements.

From the above it is apparent that [the allegations of the applicant and junior sergeant V.] ... remained unconfirmed ... Accordingly, the request to institute criminal proceedings should be dismissed owing to the absence of the alleged criminal offences...”

With assistance from the NGO “Mothers’ Right”, the applicant challenged the decision of 16 July 2007 before a higher authority. The appeal claim was supported by statements made by his fellow serviceman Gal., who in written submissions dated 26 July 2007 confirmed the applicant’s allegations and stated that all the soldiers of the Military Unit had been intimidated by the battalion commander Ch., who forbade them to give true statements, and by warrant officer G., who threatened the witnesses concerned.

On 20 September 2007 the Military Prosecutor’s Office of the North-Caucasus Military Circuit quashed the decision of 16 July 2007. Without citing specific shortcomings, it stated that the investigator’s conclusions had been baseless. In its relevant part this decision reads:

“On 14 September 2007 [the lawyer of the NGO Mothers’ Right] appealed against the decision of 16 July 2007.

Examination of the appeal statements has shown that the [investigator from the Volgograd Prosecutor’s Office] did not perform a thorough inquiry. Accordingly, his decision must be quashed as ill-founded.

From the case file it is apparent that the circumstances ... surrounding [the apprehension of the applicant] and junior sergeant [V.] by deputy commanding officer major [A.] and captain [K.] after their escape from [the Military Unit] and the subsequent ill-treatment [of the fugitives] were not sufficiently established. Consequently, the reasoning underlying the decision of 16 July 2007 is deficient.

From the above it is apparent that [the investigator’s] conclusion that the [applicant’s] complaints of ill-treatment in respect of him and [V.] lacked a sound basis and was premature. Accordingly, the decision of 16 July 2007 is groundless.”

In the context of the second round of the inquiry, the investigator conducted additional interviews with junior sergeant V., the battalion commander Ch., commanding officer major A. and captain K. regarding the applicant’s apprehension, undressing, and delivery to the Military Unit. Their additional statements were summarised as follows:

“During the additional interview with junior sergeant [V.], the latter explained that on the day following his unauthorised leave on 4 June 2007, commanding officer major [A.] and captain [K.] had apprehended them near Stepnoy, put them in a Ural truck, and brought them back to the [Military Unit]. On their way to [the Military Unit] [the applicant] asked [V.] to escape with him, but the latter refused. [The applicant] attempted to escape on his own, but was arrested by the escorting officers. After the unsuccessful attempt to run away, commanding officer major [A.] ordered them to take all their clothes off. They remained only in military briefs. This order was given to prevent their attempts to abscond. These events took place during the summer, and so he felt comfortable wearing only military briefs, and his human dignity was not humiliated. His statements of 1 July 2007 had been drafted following a sample prepared by [the applicant] and contained the false allegation that they had been standing completely naked...

During his additional interview, battalion commander [Ch.] stated that on 6 June 2007 between 2 and 4 p.m. he had lined up his battalion. At this time the escorting officer brought [the applicant] and junior sergeant [V.] to him. On 4 June 2007 they had left the [Military Unit] without permission and were later arrested near the village of Stepnoy. The escorting officers stated that after the arrest [the applicant] and [junior sergeant V.] had been undressed and left with only their military briefs on. This was done to prevent them from fleeing. After this, the battalion commander [Ch.] had ordered the [applicant] and junior sergeant [V.] to put their clothes back on. He talked to the fugitives and reprimanded them.

During the additional interview with commanding officer major [A.], the latter confirmed that [the applicant] and [V.] had been brought onto the site of [the Military Unit] wearing only military briefs. After their arrival they had been made to stand in front of their battalion formation. The commanding officer had ordered them to put their clothes back on and had talked to them. [The applicant] and [V.] were reprimanded.

When questioned further, captain [K.] noted that on 6 June 2007, after the arrest of [the applicant] and [V.] near the village of Stepnoy, [the applicant] had attempted to abscond. After this [the applicant] had been caught by the escorting officers, who ordered him to adopt “position no.1”, i.e. to take all of his clothes off and remain only in military briefs...”

On 8 October 2007, having regard to the above statements and evidence previously obtained, the investigator refused to open a criminal case to examine the applicant’s allegations. He confirmed his previous findings about the lack of criminally punishable offences. As regards the episodes of the applicant’s undressing, the investigator reasoned as follows:

“There is no indication of any criminal offence under Article 286 § 1 of the Criminal Code of Russia [“Abuse of power”] in the actions of [K.], [A.] and [Ch.] ..., because the order given to [the applicant] and junior sergeant [V.] to remove their clothes was issued solely with a view to preventing their escape. The commander of the battalion had not humiliated [the applicant] when making him stand wearing only military briefs in front of the battalion formation because later the commander had ordered him to put all his clothes back on. [The applicant] was standing half-naked in front of the battalion formation for a short period of time. The actions of captain [K.] and commanding officer [A.] constituted a minor offence, which entailed no social danger. Accordingly, [the applicant’s] request to institute criminal proceedings against them should be dismissed. The circumstances of the present case do not indicate any appearance of a criminal offence [within the meaning of the Criminal Code of Russia].”

On 11 February 2008 the applicant’s lawyer challenged the decision of 8 October 2007 in court.

On 6 October 2008 the impugned decision was quashed by the Investigating Committee of the Prosecutor’s Office of the Volgograd Garrison, which held the following:

“The examination of the impugned decision shows that [the investigator] performed the inquiry in a perfunctory manner. His decision was premature and ill-founded.

In particular, he did not interview all of the potential witnesses. It is accordingly impossible to render a well-founded decision concerning the impugned ... events.

Taking into account the above I conclude that the refusal to institute criminal proceedings issued by [the investigator] on 8 October 2007 must be quashed as illfounded.”

On 7 October 2008 the District Court referred to the decision of 6 October 2008, having terminated court proceedings in connection with the applicant’s complaint.

The case was returned for additional investigation.

Between 6 and 16 October 2008 the investigator questioned thirty servicemen from the Military Unit. They did not confirm any of the applicant’s allegations.

On 16 October 2008 on the basis of their statements and the previously collected pieces of evidence, the investigator refused to institute criminal proceedings. The investigator did not provide the content of the newly added statements in his decision of 16 October 2008 and it therefore contained no additional information on the matter but essentially read the same as the previous one.

According to the applicant, he received a copy of this decision on 25 February 2009 and then challenged it in court.

On 10 March 2009 the impugned decision was quashed by a higher investigative authority, which stated that

“Although the inquiry was performed in a comprehensive manner, the investigator did not take into account the public reaction [in response to this case]. He should have ordered the military counter-intelligence services to perform an inquiry into the allegations [of the applicant and V.]. [Accordingly], the impugned decision is premature and ill-founded.

Taking into account the above, I conclude that the refusal to institute criminal proceedings issued on 16 October 2007 must be quashed as ill-founded.”

The court proceedings were terminated and the case was sent back to the investigating authorities for further investigation of the matter.

During this round of the investigation the investigator performed an “additional inquiry” which “confirmed the statements made by [the applicant’s] fellow servicemen”.

On 20 March 2009 the investigating authorities again refused to open a criminal case in respect of the events. In addition to the reasoning which they had used before, they relied on the results of the “additional inquiry” which had established “no indication of criminal events”.

On 20 April 2009, after his military service was over, junior sergeant V. contacted the Soldiers’ Mothers Committee and stated that the initial statements he had made concerning his ill-treatment and the illtreatment of the applicant had been truthful. He explained that his later statements had been made under pressure from the command of the Military Unit. In his statements he mentioned that after the escape of June 2007 he had been beaten by the officers and had been kept in hospital for treatment in this connection. These statements were sent to the investigating authorities.

On 26 January 2011 the higher investigating authorities quashed the decision of 20 March 2009, providing a detailed list of the established defects of the inquiry. In its relevant part the decision read:

“Despite the recommendations of [the higher authority] ordering the military counter-intelligence services to conduct an inquiry into the allegations of the [applicant] and [V.], the decision of 20 March 2009 was issued in the absence of such an inquiry.

According to the claim which was brought [by the applicant] under Article 125 of the CCrP, [Gal.] and [V.] had directly witnessed the alleged ill-treatment. However, the competent authorities did not conduct a fresh interview with [V.] and never interrogated [Gal.].

The inquiry at issue was not comprehensive since the investigating authorities did not investigate [V.’s] alleged ill-treatment ... of 2007 ...

In the circumstances of the present case it is impossible to issue a lawful decision with proper reasoning without taking additional investigative steps, including the conduct of an inquiry carried out by the military intelligence services and the questioning of [Gal.], [V.] and doctors attached to the military units. The investigating authorities must also assess the allegations which were made by [V.], and [the applicant] in their statements of 20 April 2009 and 11 February 2008 respectively. The former servicemen of the [Military Unit] should be re-interviewed too, if necessary.”

The case was remitted to the investigator for an additional investigation.

In the context of this round, the competent authorities studied the evidential material from an inquiry which had been opened into Gal.’s allegations that officers who were pointed out by the applicant had illtreated and “hazed” him and other serviceman of the Military Unit on several occasions. This inquiry resulted in a decision dated 8 October 2008 not to open a criminal case.

It does not seem that the investigative authorities questioned Gal. or complied with any of the recommendations set out in the decision of 26 January 2011.

In their decision of 11 February 2011 not to open a criminal case, they repeated their previous arguments, adding that the allegations made by Gal. were refuted by the results of the investigation of 2008.

The parties did not provide any documents concerning subsequent developments. From the Government’s submissions of 2 May 2011 it is apparent that on 23 March 2011 the higher investigating authorities again quashed the decision of 11 February 2011 and remitted the case for additional investigation, noting that the investigator had again failed to question Gal., to conduct an additional interview with junior sergeant V., to perform an inquiry into V.’s medical treatment of 2007 and to carry out other investigative actions.

The case file contains no information concerning the further development of the investigation.


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1970 and currently lives in London.

On 16 October 2008 the Frankfurt am Main District Court issued a penal order against the applicant. Having regard to the written submissions the applicant had made on the charges to the prosecution, the court found the applicant guilty of withholding and embezzlement of employee salaries and sentenced her to a fine of 100 daily rates of EUR 50.

According to the record of service, a form containing several options as to the way in which court mail was served, which was issued by a courier and returned to the District Court, the courier had attempted to hand over the penal order to the applicant at her residence on 7 November 2008 at 2.10 p.m. As this had not been possible, the courier had served the penal order on the applicant by placing it in the mailbox appurtenant to her residence (Article 180 of the Code of Civil Procedure, see paragraph 29 below).

On 27 December 2008 the applicant filed an objection against the penal order with the Frankfurt am Main District Court and applied for the reinstatement of the proceedings. She argued that her objection was not time-barred as the penal order had not been served on her on 7 November 2008. She had only learnt about the existence of a penal order issued against her on 20 December 2008 when she had found in her mailbox a bill of the court cashier requesting her to pay the fine imposed in the penal order. On calling the court cashier, she had been informed of the order’s alleged service on 7 November 2008.

The applicant claimed that she was sure that no penal order had been served on her on 7 November 2008. She stated that her counsel, Mr N. Dotterweich, and her husband had been at a court hearing at the Hanau District Court on 7 November 2008 and had therefore come to visit her at her house on that day. In the afternoon she had bade farewell to her counsel. When accompanying him to the front gate, she had checked her mailbox for her daily mail in his presence. She had found neither a penal order nor a notice that a penal order had been deposited in another place.

On 6 February 2009 the applicant’s counsel supplemented the applicant’s submissions. He claimed that he, the applicant, the applicant’s mother who was living in the same house as the applicant and the applicant’s husband who lived in London had all been at the applicant’s house at the time the penal order had allegedly been served. Counsel and the applicant had returned to the applicant’s residence at around 12.15 p.m. after having attended a hearing at the Hanau District Court. The applicant’s husband had arrived shortly before them and had been waiting for them, together with the applicant’s mother.

The applicant’s counsel explained that no one had rung the doorbell to hand over the penal order while they had been at the applicant’s residence. They would have noticed the doorbell ringing, as the applicant had dogs, which were outside and would have barked. At around 3.30 p.m. they had all left the house. At that moment the applicant had taken the mail out of her mailbox. She had immediately checked the contents. There had been no official letter from a court. Such a letter would have stood out and would therefore have been noticed by the persons present, as official court letters came in bright yellow envelopes. The applicant’s husband, counsel and the common daughter of counsel and the applicant had then left.

The applicant’s counsel further submitted that the private postal service company J., which had been in charge of the delivery of official court mail for the Frankfurt am Main District Court, was known for its unreliability. In December 2008, hence shortly after the alleged delivery, the company had had to register as insolvent.

The applicant’s counsel added to his submissions the affirmations in lieu of an oath of the applicant’s mother, the applicant’s husband and himself confirming his submissions. The applicant’s mother stated, in particular, that she had paid special attention when her daughter took the mail out of the mailbox as, owing to the fact that they lived in the same house, part of her mail was sometimes put into her daughter’s mailbox. The applicant’s husband declared that when the applicant had taken out the mail he had paid special attention because he had formerly also lived at that address and sometimes mail addressed to him was still sent there.

On 9 April 2009 the Frankfurt am Main District Court rejected the applicant’s objection against the penal order as inadmissible and dismissed her application for reinstatement of the proceedings. The court considered it proved that the penal order had been served on the applicant on 7 November 2008 at 2.10 p.m. as was certified by the record of service. The applicant had therefore failed to file her objection, which was received by the court on 27 December 2008, within the two-week time-limit and the penal order had hence become final (see paragraph 27 below).

The District Court was also of the view that there was no reason to grant the applicant reinstatement of the proceedings, as it was not apparent why the applicant had been prevented, through no fault of her own, from submitting her objection against the penal order within the two-week timelimit after the delivery of 7 November 2008.

The court found that the record of service had probative value for the fact that the penal order had been put into the applicant’s mailbox by the courier on 7 November 2008 (Article 418 of the Code of Civil Procedure, see paragraph 29 below). In accordance with the settled case-law, this could only be disproved if facts were presented that convinced the court that there was no possibility that the facts certified by the record of service were correct. The applicant had not been able to furnish the court with such counter-evidence.

In its assessment of evidence, the Frankfurt am Main District Court had regard to the written statement of the courier who had delivered the applicant’s penal order, whom it had had interviewed by the police as a witness. The courier had explained that she had been registered with J. company to help her husband with the delivery of the court mail since October 2008. When asked by the police to describe how she had delivered official court letters she had stated that official court letters had always been in yellow envelopes. She confirmed that she always rang the doorbells of the addressees. If they did not respond she would deposit a “letter of notification” (Benachrichtigungsschreiben) in the mailbox. She confirmed that the signature on the record of service concerning the applicant was hers, the date and the time had been filled in by her husband. She did not specially remember either the service on 7 November 2008 or the applicant’s house. When cautioned that she did not have to respond to questions if there was a risk that she might incriminate herself, she had confirmed that she was sure she had served the mail correctly or left a “notice” (Benachrichtigung).

The District Court concluded that the courier had testified that she had always served the official court mail in accordance with the rules. Moreover, when asked by the police, the Frankfurt am Main branch of J. company had confirmed that no irregularities were known to the company with regard to the service of the court mail. The courier had had no incentive to embezzle the applicant’s mail.

The court considered, in contrast, that the story described by the applicant to disprove the service of the penal order seemed fabricated. It took into consideration that the declarations in lieu of an oath all came from persons who were close to the applicant and who had a considerable interest in the outcome of the criminal proceedings against her. It further noted that the applicant had not mentioned all the persons who had allegedly been present when she checked her mail in her first submission of 27 December 2008. Moreover, it was not in accordance with general experience in life for someone to check his mail in front of all his family members. As it had been proved by the record of service that the penal order had been put into the applicant’s mailbox, potential shortcomings by the courier’s failure to ring the doorbell first – which according to the applicant would have resulted in her dogs barking, which they allegedly had not done at the relevant time – would, in any event, have been remedied by the actual service.

On 22 April 2009 the applicant, represented by her lawyer, appealed against the decision of the Frankfurt am Main District Court. She claimed, in particular, that according to articles in a national newspaper, the unreliability of the postal service company J. had been revealed, inter alia, by the Oldenburg Court of Appeal and the Kiel Regional Court and that an Aachen local newspaper had reported that court mail had been found in a refuse shed.

The applicant further pointed out that the courier’s witness statement contradicted the record of service. The courier had described the service of the penal order by way of putting a written notice into the addressee’s mailbox, which constituted a substituted service in accordance with Article 181 of the Code of Civil Procedure (see paragraph 29 below). In contrast, the record of service certified service by way of placing the penal order itself in the applicant’s mailbox, which constituted substituted service in accordance with Article 180 of the Code of Civil Procedure (see paragraph 29 below).

On 10 June 2009 the Frankfurt am Main Regional Court dismissed the applicant’s appeal against the decision of the Frankfurt am Main District Court. The court, essentially endorsing the reasons given by the District Court, confirmed the District Court’s finding that the penal order had effectively been served on the applicant on 7 November when placed in the applicant’s mailbox (Article 37 of the Code of Criminal Procedure, read in conjunction with Article 180 of the Code of Civil Procedure, see paragraphs 28-29 below).

The Regional Court considered that the applicant had not furnished the court with sufficient counter-evidence. The court did not have to decide whether J. company had been reliable in all cases. In the case before it, the courier and her husband had had no reason to commit post embezzlement and forgery of documents. The affirmations in lieu of oaths could not prove that the penal order had not been in the mailbox on 7 November 2008. The affirming persons had not testified that they had constantly paid special attention to a possible ringing of the doorbell. Furthermore, it could not be ruled out that the applicant had been inattentive when going through the mail because of the presence of guests. It was likely that the penal order had been hidden among other mail and had probably inadvertently been thrown away or simply ignored.

On 14 August 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which she claimed that her constitutional right to be heard and her right to a fair trial had been breached in the criminal proceedings against her.

On 22 September 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 1891/09). The decision was served on the applicant’s counsel on 30 September 2009.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Retroactivity)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The applicant, Mr Vladimir Nikolayevich Ruban, is a Ukrainian national, who was born in 1972 and is currently serving a life sentence.

On 13 August 1996 the Voznesensk local prosecutor’s office in the Mykolayiv region started an investigation into the murder of four persons on 12 August 1996.

On 18 October 1999 the Donetsk Regional Prosecutor’s Office started investigating the murder of A.

On 10 November 1999 the Slavyansk Police Department of the Donetsk region started an investigation into hooliganism concerning R.

On 22 November 1999 the above three investigations were joined. Several persons were suspected of committing the above crimes as a group, one of them being the applicant.

On 14 December 1999 the Donetsk Regional Prosecutor’s Office formally charged the applicant in absentia with the above crimes. He was also placed on the list of wanted persons. The same day the investigation in respect of the applicant was suspended until he was apprehended; the criminal proceedings continued in respect of the other suspects.

On 23 December 2002, the Donetsk Regional Court of Appeal convicted and sentenced G., P. and F. for the above mentioned crimes.

On 2 February 2004 the Slavyansk Local Court ordered the applicant’s detention.

On 28 June 2007 the applicant was apprehended by the Yartsevo Prosecutor’s Office in the Smolensk region, Russia.

On 31 March 2008 the investigation was resumed after the applicant had been extradited to Ukraine. The same day the applicant was formally charged with participation in an organised criminal group together with G., P., F. and two other persons, who had died in the intervening time. The applicant was accused of strangling A., of killing four persons together with G. in 1996 and inflicting grievous bodily harm on R. in a murder attempt, the latter crime in the context of the extortion of R’s brother. All these crimes had been committed as a group.

On 22 May 2008 the investigation was completed and on 26 June 2008 the case was transferred to the Donetsk Regional Court of Appeal.

On 10 July 2009 the Court of Appeal, acting as a first-instance court, found the applicant guilty of aggravated murder and banditry and sentenced him to life imprisonment.

The applicant and his lawyer appealed, considering that the applicant’s guilt had not been proved.

On 15 July 2010 the Supreme Court of Ukraine upheld the judgment of 10 July 2009. On that day the applicant’s lawyer submitted an additional appeal claiming that the Court of Appeal had to apply the most favourable wording of the relevant provisions of the Criminal Code, which was that between 29 December 1999 and 29 March 2000 when the death penalty had already been abolished and life imprisonment had not yet been introduced. The Supreme Court in its decision noted that the applicant had been sentenced correctly.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Krzysztof Wojtyczek;Pauliine Koskelo;Ksenija Turković

The applicants’ details can be found in the Annex.

These two applicants met in February 2007, and in 2009 they entered into a stable and committed relationship with each other.

On 11 October 2009 Ms Mortagna moved to Toronto, Ontario, Canada for work purposes. A month later the two applicants decided to get married and on 27 August 2010 they married in Toronto.

In the meantime, on 2 April 2010, Ms Mortagna’s employment came to an end and as a result she was no longer entitled to a residence permit. She therefore returned to Italy and since then has been cohabiting with Ms Orlandi.

On 18 April 2011 their physical cohabitation was registered and since then they have been considered as a family unit for statistical purposes.

On 9 September 2011 the two applicants asked the Italian Consulate in Toronto to transmit to the Civil Status Office in Italy the relevant documents for the purposes of registration of their marriage.

On 8 November 2011 the relevant documents were transferred.

On 13 December 2011 the Commune of Ferrara informed the two applicants that it was not possible to register their marriage. The decision noted that the Italian legal order did not allow marriage between same-sex couples, and that although the law did not specify that couples had to be of the opposite sex, doctrine and jurisprudence had established that Article 29 of the Constitution referred to the traditional concept of marriage, understood as being a marriage between persons of the opposite sex. Thus, the spouses being of different sex was an essential element to qualify for marriage. Moreover, according to Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs, a marriage contracted abroad between persons of the same sex, one of whom was Italian, could not be registered in so far as it was contrary to the norms of public order.

These two applicants, who live in Italy, met in 2007 and entered into a stable and committed relationship with each other.

On 9 January 2008 they started cohabiting in G.P.’s apartment, although D.P. maintained formal residence in his own apartment. In 2009 G.P. purchased a second property which, in the absence of any legal recognition, for practical and fiscal reasons remained in his name only. In 2010 G.P. purchased, through a mandate in the name of D.P (for the purposes of purchasing such property), a garage. In June 2011 the couple moved into D.P.’s apartment and established their home there. They have since been considered as a family unit for statistical purposes.

On 16 August 2011 the two applicants got married in Toronto, Ontario, Canada. On 10 October 2011 they opened a joint bank account. On 12 January 2012, before a notary, the two applicants appointed each other reciprocally as guardians in the event of incapacitation (amministratore di sostegno).

Following the applicants’ request, on 7 January 2012, the Italian Consulate in Toronto transmitted to the Civil Status Office in Italy the relevant documents for the purposes of registration of their marriage.

On 20 January 2012, the Commune of Peschiera Borromeo informed the two applicants that it was not possible to register their marriage. The decision noted that the Italian legal order did not allow marriage between same-sex couples. Moreover, according to Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs, a marriage contracted abroad between persons of the same sex, one of whom was Italian, could not be registered in so far as it was contrary to the norms of public order.

Following the entry into force of the new law (see paragraph 97 below), on 12 September 2016 the two applicants requested that their marriage be transcribed as a civil union. According to the applicants’ submissions of 30 January 2017 their request was still pending and no reply had yet been received.

According to documents dated 31 March 2017 submitted to this Court in June 2017, by the Government, the applicants’ marriage was transcribed as a civil union on 21 November 2016. A certification of this registration, submitted by the Government, is dated 16 May 2017.

The two applicants met in Italy in 2002 and entered into a stable and committed relationship with each other. Mr Bray, who is Canadian, did not have a residence permit in Italy at the time, Mr Isita therefore travelled repeatedly to Canada.

On 18 July 2005 the couple married in Vancouver, Canada. In the same year Mr Isita designated Mr Bray as his heir. In 2007 Mr Isita retired and moved to Canada permanently, although he maintained formal residence in Italy.

In 2004 the two applicants had purchased some land together; in 2007 the couple purchased a further piece of land, and in 2008 they purchased a house and in 2009 a commercial property with an annexed cottage. In 2009 they also opened a joint bank account.

On 10 October 2011 they asked the Civil Status Office to register their marriage contracted in Canada.

On 25 November 2011 the Commune of Naples informed the two applicants that no such registration was possible. The decision noted that the Italian legal order did not allow marriage between same-sex couples as reiterated in Circular no. 55 of 2007 issued by the Ministry of Internal Affairs.

Following guidance from the Mayor of Naples, directing the Civil Status Office of the commune to register such marriages (see below), Mr Mario Isita and Mr Grant Bray re-submitted an application to have their marriage registered. According to information sent to the applicants by email, their request was granted on 6 August 2014. However, further to the circular issued on 7 October 2014 by the Ministry of Internal Affairs (see paragraph 89 below) the registration was cancelled on an unspecified date.

On an unspecified date, following the entry into force of the new law, the two applicants requested that their marriage be transcribed as a civil union. According to the applicants’ submissions of 30 January 2017 their request was still pending and no reply had yet been received.

According to undated documents submitted to this Court in June 2017, by the Government, the applicants’ marriage was transcribed as a civil union on 27 October 2016. A certification of this registration, submitted by the Government, is dated 29 March 2017.

These two applicants met in October 1995, and a month later entered into a stable and committed relationship with each other.

In 1996 Mr Giartosio purchased a house in Rome, Italy and in spring 1998 the two applicants started to cohabit there. There they established their common residence.

In 1998 the two applicants symbolically celebrated their union before their friends and family. In 2001 Mr Giartioso allowed limited access to his bank account in favour of Mr Goretti. In 2005 the two applicants drafted wills nominating each other as each other’s heirs.

On 9 September 2008 the two applicants got married in Berkeley, California.

In 2009 the applicants purchased property together and opened a joint bank account.

Following their request of the same day, on 29 September 2011 the Commune of Rome informed the applicants that the registration of their marriage was not possible, as it was contrary to the norms of public order.

On 1 October 2011 the couple filed a declaration with the Rome “Registry of civil unions” to the effect that they were entering into a civil union and constituting a de facto couple. The declaration is acknowledged by the relevant authorities, but has only symbolic value (see relevant domestic law and practice below).

Following guidance from the Mayor of Rome directing the Civil Status Office of the commune to register such marriages (see below), on 15 October 2014 Mr Gianfranco Goretti and Mr Tommaso Giartosio resubmitted an application to have their marriage registered. Their request was also granted and the marriage was registered. However, further to the circular issued on 7 October 2014 by the Ministry of Internal Affairs (see paragraph 89 below) by a decision of the Prefect of Rome of 31 October 2014 the above-mentioned registration was cancelled.

On 23 November 2016, following the entry into force of the new law and their request to that effect, the applicants’ marriage was transcribed as a civil union.

These two applicants met in July 1993 and immediately entered into a committed and stable relationship with each other. A few weeks later Mr Dal Molin moved in with Mr Rampinelli in La Spezia, Italy.

In 1997 the couple moved to Milan, Italy.

In 1998 Mr Rampinelli moved to Germany for employment purposes, maintaining a long-distance relationship with Mr Dal Molin; however they met every week.

In 1998 Mr Dal Molin purchased a property in Milan with financial assistance from Mr Rampinelli.

In 2000 Mr Rampinelli returned to Italy; the couple moved to Mediglia and continued cohabiting.

In 2007 Mr Rampinelli moved to the Netherlands, again for work purposes, maintaining however, a long-distance relationship with regular weekly visits to Italy.

After being in a relationship for fifteen years, on 12 July 2008 the couple got married in Amsterdam, the Netherlands. In November 2008 the couple opened a joint bank account.

In 2009 Mr Dal Molin left his job in Italy and moved to the Netherlands. As he was unemployed, he was totally dependent on his spouse. Mr Rampinelli also supported financially Mr Dal Molin’s mother, a victim of Alzheimer’s disease. They are under a system of separation of estates; however, their accounts are in joint names and their wills indicate each other as heirs.

On 28 October 2011 the applicants requested the General Consulate in Amsterdam to transmit to the respective Civil Status Offices in Italy the relevant documents for the purposes of registration of their marriage.

On 29 November 2011 the Commune of Mediglia informed the applicants that the registration of their marriage was not possible, as it was contrary to the norms of public order. No reply was received from the Commune of Milan.

Following the guiding decision by the Mayor of Milan, mentioned above, the applicants also re-submitted an application to have their marriage registered. According to the information provided by the applicants on 30 January 2017, their marriage was never registered.

However, on 4 October 2016, following the entry into force of the new law and their request to that effect, the applicants’ marriage was transcribed as a civil union.

The two applicants married in The Hague on 1 June 2002.

On 12 March 2004, the applicants being resident in Latina, Italy, they requested the Civil Status Office to register their marriage contracted abroad.

On 11 August 2004 their request was rejected in accordance with the advice of the Ministry of Internal Affairs of 28 February 2004. The decision noted that the Italian legal order did not provide for the possibility of two Italian nationals of the same sex contracting marriage; this was a matter contrary to internal public order.

On 19 April 2005 the applicants lodged proceedings before the competent Tribunal of Latina, requesting the registration of their marriage in the light of DPR 396/2000 (see relevant domestic law below).

By a decision of 10 June 2005 the Latina Tribunal rejected the applicants’ claim. It noted that the registration of the marriage was not possible, because if such a marriage had been contracted in Italy it would not have been considered valid according to the current state of the law, as it failed to fulfil the most basic requirement, that of having a female and a male. In any event, the marriage contracted by the applicants had no consequence in the Italian legal order in so far as a marriage between two persons of the same sex, although validly contracted abroad, ran counter to international public order. Indeed same-sex marriage was in contrast with Italy’s history, tradition and culture, and the fact that so few European Union (EU) countries had provided such legislation went to show that it was not in line with the common principles of international law.

An appeal by the applicants was rejected by a decision of the Rome Court of Appeal, filed in the relevant registry on 13 July 2006. The Court of Appeal noted that such registration could not take place, given that their marriage lacked one of the essential requisites to amount to the institution of marriage in the domestic order, namely the spouses being of different sexes.

On 17 July 2007 the two applicants appealed to the Court of Cassation. In particular they highlighted, inter alia, that public order referred to in Article 18 of Law no. 218/95, had to be interpreted as international public order not national public order, and thus it had to be established whether same-sex marriage was against that order, in the light of international instruments.

By a judgment of 15 March 2012 (no. 4184/12) the Court of Cassation rejected the appeal and confirmed the previous judgment. Noting the Court’s case-law in Schalk and Kopf v. Austria, (no. 30141/04, ECHR 2010) it acknowledged that a marriage contracted abroad by two persons of the same sex was indeed existent and valid, however, it could not be registered in Italy in so far as it could not give rise to any legal consequence.

The Court of Cassation referred to its case-law, to the effect that civil marriages contracted abroad by Italian nationals had immediate validity in the Italian legal order as a result of the Civil Code and international private law. This would be so in so far as the marriage had been contracted in accordance with the laws of the foreign state in which it had been contracted, and that the relevant substantive requirements concerning civil status and the capacity to marry (according to Italian law) subsisted, irrespective of any non-observance of Italian regulations regarding the issuing of the banns or the subsequent registration. The former were subject solely to administrative sanctions and the latter were not conducive of any legal effects – since registration had the mere significance of giving publicity to a deed or act which was already valid on the basis of the locus regit actum principle. Thus, had the marriage been contracted by persons of the opposite sex, in the absence of any other fundamental requirements it would have been valid and conducive of legal effects in the Italian legal order. In that case the Civil Status Officer would have no option but to register the marriage. However, the case-law had shown that the opposite sex of the spouses was the most indispensable requirement for the “existence” of a marriage as a legally relevant act, irrespective of the fact that this was not stated anywhere explicitly in the relevant laws. Thus, the absence of such a requirement placed in question not only the validity of the marriage, but its actual existence, meaning that it would not be conducive to any legal effects (as opposed to a nullity). It followed that according to the ordinary law of the land, two same-sex spouses had no right to have their marriage contracted abroad registered.

The Court of Cassation considered that the said refusal could not be based on the ground that such a marriage ran counter to public order (as dictated by the relevant circulars), but that the refusal was simply a consequence of the fact that it could not be recognised as a marriage in the Italian legal order.

The Court of Cassation went on to note that the social reality had changed, yet the Italian order had not granted same-sex couples the right to marry as concluded in the Court of Cassation judgment no. 358/10 (which it cited extensively). Indeed the question whether or not to allow same-sex marriage, or the registration thereof, was not a matter of EU law, it being left to regulation by Parliament. However, the Italian legal order was also made up of Article 12 of the Convention as interpreted by the European Court of Human Rights in Schalk and Kopf (cited above); in that case the Court considered that the difference of sex of spouses was irrelevant, legally, for the purposes of marriage. It followed that, irrespective of the fact that it was a matter to be dealt with by the national authorities, it could no longer be a prerequisite for the “existence” of marriage. Moreover, the Court of Cassation noted that persons of the same sex living together in a stable relationship had the right to respect for their private and family life under Article 8 of the Convention; therefore, even if they did not have the right to marry or to register a validly contracted marriage abroad, in the exercise of the right to freely live with the inviolable status of a couple, they could bring actions before the relevant courts to claim, in specific situations related to their fundamental rights, treatment which was uniform with that afforded by law to married couples.

In conclusion, the Court of Cassation found that the claimants had no right to register their marriage. However, this was so not because the marriage did not “exist” or was “invalid” but because of its inability to produce (as a marriage deed) any legal effect in the Italian order.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicants were born in 1953 and 1951 respectively and live in Čačak.

On 21 March 2008 the Čačak Municipal Court ordered a socially-owned company, Fabrika Reznog Alata Čačak AD and its subsidiaries (hereinafter “the debtor”) to pay the applicants specified amounts on account of salary arrears plus the costs of the civil proceedings. This judgment became final on 2 July 2008.

On 4 August 2008, upon the applicants’ request to that effect, the Čačak Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the enforcement costs.

On 30 March 2010 the Privatisation Agency ordered the restructuring of the debtor. Subsequently, the enforcement proceedings against the debtor were stayed.

On 8 April 2013, upon the applicants’ request to that effect, the Čačak Municipal Court resumed the enforcement proceedings.

On 29 July 2010 the applicants lodged an appeal with the Constitutional Court. In terms of redress, relying on the Constitutional Court Act 2007, the applicants sought, inter alia, compensation for the damage suffered due to the impugned non-enforcement.

On 19 and 20 March 2013 the applicants noted the adoption of the amendments to the Constitutional Court Act, and specified their compensation claims accordingly. Specifically, on account of the pecuniary damage, the applicants requested the respective amounts awarded to them by the final judgment in question, whilst as regards the nonpecuniary damage sustained they claimed 2,000 euros (EUR) each.

On 18 September 2013 the Constitutional Court found a violation of the applicants’ right to a hearing within a reasonable time and of their right to the peaceful enjoyment of their possessions. It further awarded the applicants EUR 1,000 and EUR 1,100 respectively as just satisfaction for non-pecuniary damage. However, it rejected their compensation claim regarding the pecuniary damage sought by the applicants. The Constitutional Court, lastly, ordered the speeding up of the impugned enforcement proceedings.

In its reasoning, the Constitutional Court stated that the applicants’ pecuniary damage claim had been lodged out of time. In so doing, it merely referred to Article 85 § 3 of the Constitutional Court Act, as amended in 2011, requiring that such claims be brought simultaneously with the lodging of a constitutional appeal.

On 10 June 2016 the Government submitted that the National Bank of Serbia informed the Čačak First Instance Court, by its letter of 19 April 2016, that the final court judgment of 21 March 2008 had been partially enforced on 14 August 2008 and that the applicants had received the sum of 143.707,89 Serbian dinars (RSD). The remainder of the judgment remained unenforced.

On 9 September 2016 the applicants’ representative submitted that the first applicant and she were not aware of the partial enforcement of the above judgment. Moreover, she stated that they had never received a letter from the National Bank of Serbia related to enforcement issue. Lastly, the applicants’ representative submitted that the National Bank of Serbia had informed her in its letter of 16 August 2016 that the amount of RSD 143.707,89 was paid only to the second applicant.


Remainder inadmissible (Article 34 - Victim);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - Competent court);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

The applicant was born in 1954 and lives in London.

The applicant married in 1977. He separated from his wife in 2002. On 9 January 2004 he issued an application in the County Court for contact with two of his five children.

The applicant and his wife divorced on 27 August 2004. His legal aid certificate was withdrawn following a financial award made as part of the divorce.

Meanwhile the contact proceedings continued. The applicant’s former wife alleged that he had harassed her and applied to the County Court for protection. On 21 December 2004 the applicant gave an undertaking to Wandsworth County Court:

“Not to contact, or communicate with, [his former wife], [her] mother or father, nor her solicitors in any way whatsoever ... except through his own solicitors.”

On 23 February 2005 Woolwich County Court granted the applicant’s former wife an injunction which inter alia prevented him from using or threatening violence towards her.

On 6 July 2005 the applicant’s former wife issued an application for him to be committed to prison for breach of the undertaking and injunction.

His Honour Judge Collins, sitting in the Central London Civil Justice Centre, chose to hear the applicant’s application for contact and his former wife’s application for him to be committed for contempt at the same time. He heard the applications on 26 and 27 July 2005.

The applicant was unrepresented during the proceedings before Judge Collins. His position as regards legal aid was due to be reviewed shortly after the hearing. The judge made no inquiries into why the applicant was unrepresented or whether he wanted representation.

On 27 July 2005 the judge made an order for indirect contact. He also committed the applicant to prison for three months because he had breached the undertaking and the order and was therefore in contempt of court.

The applicant contacted lawyers from prison in order to appeal his committal but, having accepted instructions, they failed to assist him. He subsequently lodged a complaint against them and received five hundred pounds sterling (“GBP”) in compensation.

The applicant was released on 9 September 2005, after approximately six and a half weeks’ imprisonment, pursuant to provisions permitting early release.

On around 14 September 2005 the applicant lodged an appeal out of time against the finding that he had been in contempt of court. He subsequently obtained legal aid and legal representation to pursue those proceedings.

On 23 March 2007 the Court of Appeal quashed both the finding of contempt and the sentence imposed. It found that the County Court’s errors of procedure were grave ones. Lord Justice Moses, delivering the first judgment, began by setting out a number of well-established principles relevant to committal hearings. The need to observe the Human Rights Act 1998 (see paragraphs 50 to 55 below) was central to the practice direction on committal proceedings, which had applied to the proceedings before the County Court (see paragraph 41 below). Such proceedings concerned a “criminal charge” for the purpose of Article 6 of the Convention and the defendant therefore benefited from the right to legal assistance set out in Article 6 § 3 (c). A defendant to committal proceedings was not obliged to give evidence and enjoyed a right against selfincrimination and, referring to Article 6 § 2, the burden of proving guilt lay on the person seeking committal.

In the applicant’s case, Moses LJ observed that these matters had not been drawn to the attention of the judge. He continued:

“11. Untutored and unassisted as the judge was, matters went wrong from the beginning. The judge noted, at the outset, that Mr Hammerton was acting in person. He made no comment about it whatever. In particular, he did not ask anything as to the circumstances in which he was unrepresented. Had he done so, he would have learnt that earlier legal representation had been withdrawn by the Legal Services Commission after he received a sum of money on his divorce ... That was the subject matter of a review panel which was due to sit two weeks later. This emerged at the outset of the cross-examination by counsel for Mrs Hammerton on the second day of the hearing.”

Moses LJ considered that once the judge had learnt that the issue of legal aid was the subject of an imminent review panel, there was no reason why the committal hearing should not have been adjourned until the issue of legal representation had been resolved. He was of the view that the judge had been obliged to ask appropriate questions and to consider, at the very outset of the hearing, whether there should be an adjournment so as to enable the defendant to be represented. In the absence of evidence of intransigence on the part of the applicant, and he noted that there was none, there was no reason why the applicant should not be represented.

Moses LJ further found that the decision to hear the application for committal at the same time as the application for contact led to inescapable errors in procedure. He noted that it was for the applicant to establish his claim for contact, and for his former wife to prove breaches of the undertaking and the court order. The applicant should have been warned that he did not need to give evidence; he received no such warning.

Moses LJ concluded that the decision of the judge to hear both applications at the same time had placed the applicant in an impossible position, noting that there was no hint at any stage in the transcript of the proceedings of anyone advising the applicant of his rights in respect of the committal proceedings, nor of the judge reminding himself of the different burden and standard of proof in the two applications. Further, the judge had given no explanation as to why he considered it essential to deal with both applications at the same time.

Finally, Moses LJ considered that the judge again fell into error at the sentencing stage. He noted that the judge never paused, even at that stage, to consider whether the applicant should have legal representation or to remind himself of the relevant principles. He observed that the judge had paid no heed to the purpose of punishment in contempt proceedings. Since he had not been represented and had never been given an opportunity to mitigate, the sentencing phase of the committal was “fatally flawed”.

Moses LJ then assessed whether it was necessary for the court to consider whether legal representation would have made a difference in the applicant’s case. He commented that it was almost impossible to envisage a case where such representation would not be needed, if only, as this case demonstrated, to remind a judge of the principles which applied. Even in a case where a defendant admitted every breach alleged, representation would be needed so as to assist the judge in considering the appropriate disposal. The case was certainly not one where the court would decline to take action despite a violation of Article 6. There was ample material to suggest that legal representation would have made a difference. Quite apart from the question of the appropriate sentence, there was material relevant to the facts of the breaches to which the judge’s attention ought to have been drawn.

Lord Justice Wall fully agreed with Moses LJ, noting:

“35. There are, of course, many cases in the books in which this court has upheld committal orders even although they have been made in proceedings which were procedurally flawed ... Provided the contemnor has had a fair trial and the order has been made on valid grounds, the existence of a defect in the committal application or in the order served will not result in it being set aside except in so far as the interests of justice require that to be done ...

The instant case, however, is plainly not in that category, and I am in complete agreement with Moses LJ that the defects in the process in the instant case are so serious that the interests of justice plainly require both the committal order and the consequential sentence of imprisonment to be set aside.”

Specifically on the question of access to legal advice, he added:

“52. ... Even more important, however, in my view is the proposition that in the absence of exceptional circumstances, it is a breach of a party’s ECHR Article 6 rights to be sent to prison for contempt of court without the benefit of legal representation. No magistrates’ court would impose a custodial sentence on an unrepresented defendant, and in my judgment, no family court should send a litigant in person to prison for contempt without first making arrangements for that litigant to be legally represented.”

On 20 March 2008 the applicant commenced proceedings for damages under common law for the tort of wrongful imprisonment and under the Human Rights Act 1998 (see paragraphs 50-55 below), relying on Articles 5 and 6 of the Convention. He sought an extension of time for lodging his claim.

On 25 February 2009 the High Court dismissed his claim and refused the extension of time. However, Mr Justice Blake made it clear that had he considered there to be merit in the claim, he would have extended time. He had therefore considered the merits of the applicant’s claim.

Blake J noted at the outset that the Court of Appeal had identified three main errors in the applicant’s case: the failure to inquire into why he was not represented and to consider whether to adjourn the committal proceedings to enable him to obtain representation; the joinder of the committal proceedings and the contact order application, which undermined the burden of proof and the applicant’s right not to give evidence in the committal proceedings; and the fact that he was not given the opportunity to mitigate before sentence was passed. Blake J considered it plain from the judgment of the Court of Appeal that although it had granted no formal declaration that the committal hearing had breached the applicant’s human rights, it had been of the view that it had and that had been the tenor of its findings.

As to the false imprisonment claim, Blake J referred to the longstanding recognition in the case-law that there was immunity from suit for a claim based on alleged errors of a circuit judge of competent jurisdiction that resulted in detention, in the absence of malice. The applicant’s claim accordingly failed.

He considered equally hopeless the applicant’s claim that any violation of an Article 6 § 1 right gave rise to a right to damages under the Human Rights Act 1998. He found that section 9(3) of the Act, which precludes damages in respect of a judicial act done in good faith, with the exception of damages required by Article 5 § 5 of the Convention (see paragraph 55 below), was inconsistent with the applicant’s claim. He also referred to the fact that just satisfaction under the Convention was a matter of discretion.

As to the claim under Article 5 of the Convention, Blake J referred to this Court’s judgments in the cases of Benham v. the United Kingdom [GC], 10 June 1996, Reports of Judgments and Decisions 1996III, Perks and Others v. the United Kingdom, nos. 25277/94 and others, 12 October 1999 and Lloyd and Others v. the United Kingdom, nos. 29798/96 and others, 1 March 2005. He decided that the applicant’s claim that his detention was a violation of Article 5 § 1 because any hearing in which a violation of Article 6 occurred was not in accordance with law was:

“a slightly more modest reworking of the article 6 submission that has been already considered and summarily rejected. Again I reject this reworking of the submission for similar reasons to those already given, but more particularly for the principles spelt out in the trio of Community charge cases.”

Blake J concluded that the applicant’s detention pursuant to the order of Judge Collins was not so gross or obvious an irregularity, within the meaning of § 115 of the Court’s judgment in Lloyd and Others, cited above, as to be not in accordance with the law. In reaching this conclusion, he noted, inter alia, that the County Court was a court of competent jurisdiction; that proper notice of the hearing and of the committal application had been given; that the record of proceedings did not appear to reveal any application by the applicant for an adjournment to seek legal representation; that there was no failure to follow a statutory prerequisite because the general requirement to observe Article 6 imposed by the Human Rights Act 1998 was not the same as a precise rule prohibiting committal unless a condition was complied with; that, similarly, the practice direction (see paragraph 41 below), which set out the need to observe the Human Rights Act, was in general terms and did not amount to a condition precedent; that the Court of Appeal, at the time of the County Court’s decision, had not made an unambiguous finding that a lack of representation at a committal hearing would always violate Article 6, although its finding in the present case meant that Article 6 might be considered a condition precedent in future cases; and that there was no hint of malice or bad faith by the judge.

Blake J also found that the Court of Appeal’s three principal criticisms all suggested that the County Court had erroneously exercised its judgment. Erroneous exercises of judgment did not make decisions not in accordance with law or arbitrary in the sense indicated in the Article 5 § 1 case-law.

Having thus concluded, Blake J explained that, had he reached the contrary conclusion, it would have been necessary to consider what the causal nexus between the unfairness and the detention resulting from the unfairness was. He accepted that where detention was in violation of Article 5 § 1 it was necessary and appropriate to visit it with a measure of damages, however modest. He found that, if the family-law applications had been separated correctly and the applicant had been represented, a finding of contempt would nevertheless have been inevitable. However, whilst custody was the more probable outcome, the length of sentence would have been significantly shorter and approximately fourteen days, so the applicant would not have served six weeks in prison. He indicated that, had a violation of Article 5 been established, he would have awarded damages in the sum of GBP 6,000, on an equitable basis.

The applicant sought leave to appeal out of time. On 27 August 2009 leave to appeal was refused on the papers. The judge commented that he might consider extending time if there was a real prospect of success, but in his view the judgment would be upheld.


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1974 and is detained in the Tomsk Region.

On 2 December 2007 the applicant was arrested on suspicion of murder and two days later was placed in remand prison no. IZ-70/1 in Tomsk. On 13 November 2008 he was found guilty and sentenced to eleven years’ imprisonment. The conviction was upheld on appeal. Since 18 February 2009, save for short periods of detention in the remand prison, the applicant has been held in correctional colonies nos. 2 and 4 in the Tomsk Region.

The applicant submitted that during his pre-trial detention he had not been examined by a dentist and had not received any dental treatment because, as he had been informed, the remand prison neither possessed any dental equipment nor employed a dentist. The only alternative to treatment had been tooth extraction by a doctor who visited the facility once or twice a month. While in the correctional colony, the applicant had been unable to obtain any dental treatment for extended periods of time because the dental drill and Xray scanner were broken. Moreover, the colony’s dentist was habitually either on holiday or away attending training courses. The applicant produced statements written by five inmates with whom he had been detained in the same penal institutions from 2007-2014. The statements corroborated his account of the lack of effective dental treatment.

The applicant also submitted that he had received dental treatment for the first time on 8 June 2011 in the correctional colony. Since that time, he had undergone scaling and cleaning procedures, and extraction of teeth, but had not been prescribed any painkillers for the toothache he was suffering. Although the applicant was diagnosed with periodontitis on 19 February 2009, it was not until 20 November 2013 that treatment of the disease had been prescribed.

During his detention the applicant lost nine teeth in total. He was unable to obtain orthodontic treatment even at his own expense. He had therefore asked a fellow inmate to make him temporary metal dental prostheses to replace several teeth, but they did not fit well. On 23 December 2014 the applicant had been examined by a visiting dentist from another correctional colony who recommended examination by a specialist dentist once released.

The applicant also submitted several photos of his oral cavity dated 2 February and 28 April 2014, which showed that he had lost at least two front teeth within the given timespan. A medical certificate issued by the applicant’s dentist on 27 June 2014 confirmed the presence of dental prostheses for eight teeth and the absence of another ten. Another dentist’s certificate of 24 March 2016 showed that there were thirteen teeth missing in total.

The applicant brought the issue of inadequate medical treatment to the attention of various domestic authorities, including the head of the remand prison, the Tomsk regional prosecutor’s office, and the Federal Service of Execution of Sentences (“the FSIN”), but all to no avail.

The Government submitted that the applicant had undergone medical examinations in each penal facility and had been provided with the requisite medical treatment. They relied, in particular, upon certificates issued by the director of prison hospital no. 70 of Tomsk and the director of correctional colony no. 2, extracts from the applicant’s medical file, lists of medicines and medical appliances available at the respective penal institutions, staff lists, and the penal institutions’ medical licences.

The applicant’s medical file contained the following entries. On 19 February 2009 the applicant was examined by a dentist for the first time after his placement in detention on 4 December 2007, and he was diagnosed with periodontitis. On 30 December 2010 the dentist concluded that “the oral cavity required sanitisation”. On 3 February 2011 the applicant raised his dental problems during a visit to the head of the medical unit but there was no entry in the medical file indicating that the applicant’s complaint had been investigated. On 2 March 2011 the dentist recommended extraction and further treatment of teeth to the applicant. Four days later an exacerbation of his chronic periodontitis was diagnosed and one tooth was extracted. Eleven days later the applicant was informed that he could have dental prostheses fitted at his own expense. Between 3 June and 20 July 2011 he visited the dentist on seven occasions, during which he was diagnosed with gingivitis of the front teeth and dental caries, three permanent dental fillings were put in, the gingivitis was treated and the tartar build-up was removed. On 1 and 8 December 2011 the dentist diagnosed the applicant as having chronic periodontitis and found that the oral cavity required sanitisation. The cleaning procedure was performed eight months later. On 20 November 2013 the applicant was diagnosed with inflammatory degenerative periodontitis and received treatment for it. Between 20 March and 5 May 2014 the dentist again confirmed the diagnosis, prescribed treatment and extracted three teeth.

Between 10 July and 7 August 2014 the applicant visited the medical unit three times and asked for dental prostheses. It was explained that such treatment could be provided at the applicant’s own expense. Meanwhile the dentist confirmed the diagnosis of inflammatory degenerative periodontitis, prescribed treatment, extracted another tooth, removed a dental bridge and cleaned the tartar build-up.

On 23 December 2014 the applicant was examined by two dentists, who confirmed the partial absence of teeth in both jaws, with some of them being replaced by metal prostheses. They did not diagnose periodontitis and concluded that the applicant did not require orthodontic treatment. A dentist who carried out a checkup on 22 October 2015 arrived at the same conclusions, but noted some teeth missing on the upper jaw only. The applicant was found to be “apparently healthy”.

The Government did not contest the veracity of the statements made by the applicant’s former cellmates.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The case originated in an application (no. 52257/11) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Hungarian nationals, Mr Tibor Bak, Mrs Lászlóné Csatári, Mr István Csillag, Mr András Halász, Ms Boglárka László, Mr Zoltán Lex, Mr Márk Marsi, Mr Sándor Orosz, Mrs Klára Pápainé Armuth, Mr György Rosta and Mr Attila Széles (“the applicants”), on 8 August 2011. A list of applicants is annexed to the present judgment.

The applicants were represented by Mr Cs. Tordai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent of the Ministry of Justice.

On 31 August 2015 the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention concerning the imposition of 98% tax on part of their severance payment was communicated to the Government.

On 10 November 2015 and 9 June 2016 the Court received friendly settlement declarations signed by the Government and seven applicants under which the latter agreed to waive any further claims against Hungary in respect of the facts giving rise to their complaints against an undertaking by the Government to pay Mrs Lászlóné Csatári 20,600 euros (EUR), Mr István Csillag EUR 19,300, Mr Zoltán Lex EUR 46,700, Mr Márk Marsi EUR 8,300, Mr Sándor Orosz EUR 28,300, Mr György Rosta EUR 16,000, and Mr Attila Széles EUR 11,100, to cover any pecuniary and non-pecuniary damage as well as costs and expenses. These sums will be converted into the currency of the respondent State at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the strike-out decision taken by the Court. In the event of failure to pay these sums within the said three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case in respect of these seven applicants.

The first applicant, Mr Tibor Bak was born in 1965 and lives in Dunakeszi. From June 2002 he was employed at the State-owned National Development Bank Ltd. His employment was terminated by mutual agreement in June 2010. The upper bracket of his severance payment was taxed at 98% rate. The Government did not contest the levy of the special tax on his severance payment; but in their observations they rectified the tax amount. The first applicant did not contest this. Accordingly, special tax was levied on his severance payment in the amount of 7,617,826 Hungarian Forints (HUF) (approximately EUR 25,400).

The fourth applicant, Mr András Halász was born in 1961 and lives in Budapest. From October 2002 he was employed at the State-owned National Export-Import Bank Ltd. His employment was terminated on 29 October 2010. The upper bracket of his severance payment was taxed at 98% rate. The Government did not contest the levy of the special tax on his severance payment; but in their observations they rectified the tax amount. The fourth applicant did not contest this. Accordingly, special tax was levied on his severance payment in the amount of HUF 9,125,270 (approximately EUR 30,400).

The fifth applicant, Ms Boglárka László was born in 1967 and lives in Budapest. From April 2007 she was employed at the State-owned MFB Investment Ltd. Her employment was terminated by mutual agreement on 29 October 2010. The upper bracket of her severance payment was taxed at 98% rate. The Government did not contest the levy of the special tax on her severance payment; but in their observations they rectified the tax amount. The fifth applicant did not contest this. Accordingly, special tax was levied on her severance payment in the amount of HUF 6,508,053 (approximately EUR 21,700).

The ninth applicant, Mrs Klára Pápainé Armuth was born in 1957 and lives in Budapest. From January 2008 she was employed at the State-owned National Asset Management Ltd. Her employment was terminated by mutual agreement in 2010. The upper bracket of her severance payment was taxed at 98% in the amount of HUF 2,932,623 (approximately EUR 9,700). The Government did not contest this. In a letter dated of 17 March 2016 the ninth applicant submitted that due to some special accounting methods applied in her case, she had received further bonuses from her previous employer calculated pro rata temporis for the years of 2011 and 2012; in respect of these bonuses additional special tax had been levied in the amount of altogether HUF 829,119 (approximately EUR 2,700). The applicant received a certificate from her employer regarding the deduction of special tax from the subsequently received bonuses on unspecified dates in 2011 and 2012.


André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicant arrived in Germany in 2002. In the same year, and again in 2011, his asylum requests were refused by the competent domestic authorities. In 2012 the applicant was granted a residence permit, which was subsequently prolonged until March 2018.

In 2014 the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) investigated the applicant owing to his alleged ties to the “radical Islamic scene”. In December 2014 the applicant was ordered not to leave Germany, as it was suspected that he was going to travel to Syria to join the so-called “Islamic State”. A request to lift this order was denied in 2016 as the security agencies possessed information indicating that the applicant was still in contact with the “radical Islamic scene”.

In January 2017 the police obtained intelligence about the applicant, including records of online chats in which the applicant stated that he would be willing to participate in an “operation” in Germany. Subsequently the public prosecutor’s office launched an official investigation on the grounds of “encouraging the commission of a serious violent offence endangering the state” and the applicant’s flat was searched. During the search several smartphones, tablets and other devices were seized. On the devices 42,000 pictures and 1,000 videos were found which showed violent acts in an Islamic context and also included a manual for building explosive devices.

On 13 March 2017 the Bremen Administration ordered the applicant’s deportation to Russia, as he constituted a threat to national security. He was suspected of being willing to participate in or carry out a terrorist attack in Germany. The decision was based on intelligence gathered by the security agencies (see paragraphs 7 and 8 above). Although the authorities concluded that he had not yet reached the planning stage, he nonetheless constituted an abstract danger for society. This abstract risk was sufficient to overrule the applicant’s right to respect for private and family life, given the fact that he had grown up and lived in Germany for the previous 15 years. Moreover, there was no risk for the applicant under Article 3 of the Convention as the Russian authorities would not be informed about the intelligence that had been gathered and it was up to him not to join the “radical Islamic scene” in Russia after his deportation.

The applicant challenged the decision before the Federal Administrative Court and applied for an interim measure suspending his deportation for the duration of the main proceedings. During the interim proceedings the Federal Administrative Court requested further information from the German Foreign Office concerning the expected treatment of the applicant after deportation to Russia. Based on conversations with employees of the Russian NGO “Committee Against Torture” the Foreign Office responded that it could be expected that the applicant would be questioned and monitored by security agencies, but that it would be highly unlikely that he would be pre-emptively tortured.

On 13 July 2017, in a detailed decision of 63 pages, the Federal Administrative Court refused to grant the interim measure. It concluded that the assessment of the security risk for the applicant was in essence correct. However, unlike the Bremen Administration, the court considered that the Russian authorities would be acquainted with the reasons for the applicant’s deportation. Therefore, due to the risk of torture and ill-treatment the applicant could not be deported to his home region of Dagestan. However, he could be deported to another part of Russia. After considering several current reports on the situation, the court held that there were no specific indications that the applicant would be detained or tortured elsewhere in Russia or be forcibly brought to Dagestan on the basis of his previous conduct in Germany. It found that the publicly available reports were not applicable to the present case as they concerned persons who were in one way or another connected to the conflicts in Dagestan and Chechnya, which the applicant was not. The most relevant information stemmed from the Committee Against Torture (see paragraph 10 above), which had provided information specific to the present case to the German Foreign Office. According to this information the applicant would probably be questioned and monitored by security agencies in Russia, but it was highly unlikely that he would be tortured. Consequently, the court concluded that even though it could be expected that the applicant would be closely monitored, any further action by the Russian authorities would depend on the applicant’s future conduct in Russia. As regards Article 8, the court held that even though the applicant would face certain problems due to not having family in other parts of Russia and everyday discrimination based on his Caucasian ethnicity, he should still be able to settle in the suburbs of Moscow and find a job, since he had a basic knowledge of the Russian language.

On 26 July 2017 the Federal Constitutional Court – in a reasoned decision – refused to grant an interim measure or to admit the applicant’s constitutional complaint for adjudication. While criticising that the Federal Administrative Court had not assessed in sufficient depth whether the applicant could live and find work outside of the Northern Caucasus without facing the risk of inhuman or degrading treatment at the hands of the Russian authorities, it pointed out that the Federal Administrative Court had nonetheless correctly based its decision on current reports concerning the situation of persons of Northern Caucasian ethnicity returning to Russia and information requested from the German Foreign Office and the Federal Office for Migration. It therefore concluded that the Federal Administrative Court had considered all possible risks the applicant would face and had also correctly found that the applicant could be deported to Russia.

The main proceedings before the Federal Administrative Court are still pending.

The deportation of a so-called “Gefährder” (a potential offender, who poses a threat to national security) is regulated in section 58a of the Residence Act (Aufenthaltsgesetz), which reads:

“(1) The supreme Land authority may, based on an assessment of the facts and without a prior expulsion order, issue a deportation order for a foreigner in order to avert a special danger to the security of the Federal Republic of Germany or a terrorist threat. The deportation order shall be immediately enforceable; no notice of intention to deport shall be necessary.

The Human Rights Watch report “‘Invisible War’ ‒ Russia’s Abusive Response to the Dagestan Insurgency” of 18 June 2015 outlines several human rights violations during counter-insurgency operations in Dagestan, including arbitrary detention, torture and forced disappearances. It also states that the authorities have cast an excessively wide net by essentially treating Salafis as criminal suspects without charging them with any specific offence.

A report drawn up by the Swiss Refugee Council in 2014 (“Russland: Verfolgung von Verwandten dagestanischer Terrorverdächtiger außerhalb Dagestans”, 8 September 2015) describes the situation of family members of alleged terrorists involved in the conflict in Dagestan. According to it, family members were increasingly the targets of persecution by the Russian authorities even outside of the Northern Caucasus. The methods employed by the Russian authorities included arbitrary arrests and criminal prosecution, and disappearances.

An updated report by the Swiss Refugee Council regarding the human rights situation in Chechnya (“Russie – Tchétchénie – Mise à jour: situation des droits humains”, 13 May 2016) illustrates several examples of Chechens, with a prior connection to the conflict in Chechnya, having been detained, tortured and killed after returning to Russia. The NGO also reports that the Chechen and Russian authorities cooperate closely and that several persons had been forcibly returned to Chechnya from other parts of Russia.

The International Crisis Group in its report “The North Caucasus Insurgency and Syria: An Exported Jihad?” of 16 March 2016 describes grave human rights violations, including enforced disappearances, summary executions and the widespread occurrence of torture in Dagestan and Chechnya. It also describes the preventive registration of those suspected of adherence to fundamentalist strands of Islam as one of the key control methods across the Northern Caucasus. After incidents such as clashes between security forces and insurgents, or terrorist acts, the individuals on these lists were faced with the risk of detention and interrogation, which often involved violent or degrading methods.