András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant, Mr Amer Ihsan Niamik Saeed, is an Iraqi national, who was born in 1967 and lives in Birkerød. He is represented before the Court by Mr Gunnar Homann, a lawyer practising in Copenhagen.

The applicant and his brother entered Denmark in December 2001 and requested asylum. The applicant was granted asylum in February 2003.

On 21 December 2007, pursuant to section 45 b, subsection 1, of the Aliens Act, on the basis of a recommendation from the Minister for Justice, who had received information from the Secret Service, PET (Politiets Efterretningstjeneste), the then Minister for Refugee, Immigration and Integration Affairs (henceforth “the Minister for Integration”), deemed that the applicant was a danger to national security. By virtue of section 45 b, subsection 2, of the Aliens Act, the Minister for Integration decided that the information included in the assessment could not, for security reasons, be disclosed to the applicant or to the then Aliens Service (Udlændingeservice), which had to make a further decision in the case (socalled “closed material”).

Before the Aliens Service, the applicant stated that he was an ethnic Turkmen. He was married to an Iraqi national, who had returned to Iraq in 2005. They had divorced in 2008. He spoke Turkmen and Arabic and very little Danish. He had never worked in Denmark. He received public welfare and financial help from his brother, who had also been granted asylum in Denmark. His parents and six siblings lived in Iraq. He also had a brother in Sweden. He had regular telephone contact with his family.

On 9 January 2008, the Aliens Service decided to revoke the applicant’s residence permit, to deport him with a permanent ban on his return, and to confiscate his Danish alien’s passport.

On 27 March 2008, relying on, among other things, Articles 8 and 13 of the Convention and Article 1 of Protocol No. 7 to the Convention, the applicant appealed against the Aliens Service’s decision to the then Ministry for Refugee, Immigration and Integration Affairs (hereafter the “Ministry of Integration”). The latter upheld the decision on 6 May 2008.

The applicant also appealed against the decision to the Refugee Appeals Board (Flygtningenævnet) which by decision of 1 April 2008 found, by virtue of section 31, subsection 1, of the Aliens Act, that there were impediments to the implementation of the deportation order in that the applicant could not be returned to Iraq or to a country where he was not protected against refoulement to Iraq. The said provision set out that “an alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country”. Consequently, the applicant remains in Denmark on a socalled “tolerated stay” (tålt ophold).

On 18 March 2009 the applicant initiated proceedings before the City Court of Copenhagen against the Ministry of Integration, requesting the revocation of the decision by the Minister for Integration of 21 December 2007 deeming him a danger to national security, and the decision by the Ministry of 6 May 2008 to deport him with a permanent ban on his return and the confiscation of his alien’s passport. In the alternative, he claimed that the decision of 6 May 2008 should not have been taken without the basis for the decision being disclosed to him.

On 16 June 2009 the City Court of Copenhagen referred the case to the High Court of Eastern Denmark (Østre Landsret, hereafter “the High Court”). Due to the decision by the Refugee Appeal Board that the applicant could not be returned to Iraq or a country where he was not protected against refoulement to Iraq, the proceedings before the High Court did not concern the actual deportation of the applicant. The court focused on whether the applicant could be deemed a danger to national security, and whether the deportation order had been justified.

The procedure before the High Court was covered by Chapter VII b of the Aliens Act concerning decisions on administrative deportation and so on, inserted by Act no. 487 of 12 June 2009, in force as of 1 July 2009. Consequently, the High Court assigned counsel for the applicant. The court also assigned a special advocate to safeguard the applicant’s interests and exercise a party’s rights on the applicant’s behalf with regard to the closed material falling within section 45 b, subsection 2, of the Aliens Act. The special advocate would be notified of all court hearings in the case and was entitled to attend them and he should be given a copy of all the material included in the case before the High Court. The special advocate was not allowed to discuss the closed material with the applicant or the applicant’s counsel and he could not speak at hearings where the applicant or his counsel were present. However, the applicant and his counsel could communicate in writing with the special advocate about the case at any time. The High Court could decide on its own initiative or upon request from the special advocate that closed material should be transmitted to the applicant and his counsel if the decision of the Minister for Justice under section 45 b, section 2, was not justified by security reasons. The part of the hearing concerning the closed material would be held behind closed doors. That part of the hearing would be attended by the special advocate, but not by the applicant and his counsel. The High Court would decide how hearings held wholly or partly behind closed doors would be conducted. The High Court would adopt a decision once the parties and the special advocate had had an opportunity to make a statement.

Before the High Court, various written material was submitted, including a report of 17 September 2009 by PET. It stated that PET, during its regular survellance of militant Islamic persons and networks, had become aware of persons in Denmark with a central role in a network that sent terrorists to Iraq to carry out terrorist activities, notably suicide bomb attacks against coalition troops. The surveillance had shown that the network cooperated with groups and persons in, inter alia, Morocco, Saudi Arabia, Syria and Sweden. During its observation of the network between 2005 and 2007, PET had obtained information that from 2006 to 2007 the applicant had had a central role in this network, which included another known member, MH, who was an Iraqi national living in Denmark. Due to the secret investigation carried out by PET and the material obtained from various foreign secret services and other protected sources, part of PET’s investigation material could not be disclosed (so-called closed material). However, the so-called open material was rather vast and consisted, among other things, of numerous extracts obtained by communication interception, observation of suspected members’ travel activities, reports by foreign police authorities on arrests of suspected members, and convictions abroad of some of the members concerned. Based on this material, PET had made a summary, stating that in their view, between 2006 and 2007, the applicant had constantly been in contact with MH and groups in Morocco. They had used a special code language, which in PET’s view concerned recruitment of terrorists, notably from Ceuta (a Spanish enclave bordering Morocco) or Saudi Arabia, to be sent to Syria, from where they entered Iraq. PET had observed that the applicant had been to Ceuta in December 2006 on a false Spanish passport. PET estimated that from July to December 2006 the network had sent around thirty terrorists to Iraq, mainly from Morocco. They also had information that a number of those persons had been killed in action. In May 2007, MH had entered Syria and been arrested, whereupon the applicant had taken over the coordinating role in Denmark, but he had suspended his activities shortly thereafter.

A general report by PET on code language generally used by militant extremists was also submitted before the High Court. It stated that it had been known since 2002 that words generally related to weddings were an integral part of the communication used by terrorists. Thus, for example, a wedding stood for a terrorist attack and a bridegroom referred to a suicide bomber. Moreover, words like “shirt” meant terrorist, “carton” meant suicide bomber, “to be ill” meant to be imprisoned, “hospital” meant prison, and “cloudy” meant to be surveyed. Moreover, in order to avoid interception of mails, so-called draft mails were regularly used, where the receiver knew the access code, and thus was able to read the draft mail by logging on to the sender’s e-mail account, and delete the draft afterwards. That method was used, inter alia, by the perpetrators behind the terrorist attack in Madrid on 11 March 2004.

Moreover, a report by PET of 17 June 2010 was submitted concerning four meetings which had taken place between 15 and 29 May 2007 between the applicant and PET. The applicant had explained that the aim of his visit to Ceuta in December 2006 had been to find a wife. He had been shown photographs of various persons who were known officially to be of special interest to PET, but the applicant had not contributed any valuable information. He received 5,000 Danish kroner for his participation in these interviews.

Before the High Court, an article from The Daily Telegraph of 25 November 2006 was also submitted, stating that the American intelligence service had assessed that the Moroccan town Touan, situated less than 30 miles from the Spanish enclave of Ceuta, had turned into one of the world’s largest Jihad recruiting areas. In the previous eight months, a group of young men from the same mosque had left their home to become suicide bombers in Iraq and a further twenty-one men had left the area to seek the death of martyrs.

The applicant was heard. He maintained that he had nothing to do with terrorist activities. He explained, among other things, that he had never had a job in Denmark. Sometimes, he helped out in a kebab restaurant. In 2005, he had met a man with the initials MH in a Turkmen club in Copenhagen. MH ran a mobile telephone shop. They started working in cooperation: MH had money and the applicant had contacts. The applicant helped MH with trading products with persons in, inter alia, Saudi Arabia, Syria, Turkey and Morocco. He had made some contact via the internet. Confronted with telephone conversations between him and others of 3, 27, 29 and 30 July; 5, 14 and 30 August; 4, 17, 22, 23 September; 26 and 29 December 2006 which had been intercepted, and various internet chat exchanges, he explained that the conversations had nothing to do with recruiting terrorists, but rather concerned trade in different goods from MH’s mobile telephone shop or, for example, jackets. It had been the applicant’s task to find out where the goods were. As to the use in several conversations of words such as: “bridegrooms” or “new bridegrooms”, “we have girls willing to marry”, “either he will marry or he will become ill”, “booklets”, “the two articles”, “they must be ready in a couple of days”, “they will be told when they can leave”, “the men”, “brothers”, “cartons”, “cloudy”, “surveillance” and “illness”, they had nothing to do with recruitment of terrorists. The word “bridegroom” was used a lot in Turkmen for persons who are nicely dressed, but also referred to persons who received products. “Cartons” meant goods but could also refer to persons. He was also in contact with some Moroccan women, who wished to marry. At some time they had changed from using the telephone to using Hotmail when doing business, because MH also sold illegal goods.

The applicant submitted, among other things, that even if the disputed procedure and decisions were in compliance with sections 25 and 45 b of the Aliens Act, the procedure had been in breach of the guarantees enshrined in Article 8 as to legality, proportionality and lack of arbitrariness, Article 13 as to an effective remedy, and Article 1 of Protocol No. 7 to the Convention as to discovery. He contended that the Ministry of Integration had failed to prove that he was a central person in an international network and a danger to Danish national security.

By judgment of 9 December 2010, the High Court unanimously found against the applicant. At the outset, it found that the open material provided such detailed and sufficient information about the allegations against the applicant that it enabled him to address the danger assessment and the open material submitted against him, and in addition give adequate instructions to his special advocate as to the closed material. In this respect the High Court considered that the proceedings leading to the disputed decisions, and the review proceedings before the High Court, complied with the provisions of the Convention relied on and notably the principles set out in A. and Others v. the United Kingdom ([GC], no. 3455/05, § 220, ECHR 2009). Finally, based on the open material, the High Court found it established that the applicant was a threat to national security, a finding that had been further strengthened by the closed material, to which the special advocate had had full access. Conclusively, the High Court found that the deportation order had been justified and proportionate.

The applicant appealed against the judgment to the Supreme Court (Højesteret), before which the procedure was also conducted in an open and a closed part by virtue of section 45 g, section 1, of the Aliens Act. The parties agreed that the review did not concern the deportation of the applicant as such. The parties referred to their previous submissions. In addition, the special advocate submitted that a number of documents should be excluded from the case, as it could not be ruled out with the requisite certainty that the information in those documents had been obtained by the use of torture. In reply, the Ministry of Integration pointed out that the special advocate had failed to submit any concrete information to support such an allegation.

By judgment of 24 June 2011 the Supreme Court unanimously found against the applicant with the following reasoning:

The danger assessment and deportation (the applicant’s principal claim)

The Minister for Integration decided on 21 December 2007, based on a recommendation by the Minister for Justice, that [the applicant] must be deemed a danger to national security pursuant to the then section 45 b, section 1, of the Aliens Act. Thereafter, on 9 January 2008, the Aliens Service decided that [the applicant] shall be deported with a permanent ban on his entry, and that his alien’s passport shall be revoked. That decision was upheld by the Ministry for Integration on 6 May 2008.

The decision by the Minister for Integration that [the applicant] must be deemed a danger to the security of the State, is based on accusations against him, which PET in its report of 17 September 2009 – submitted as open material – summarised as follows: From the spring of 2006 [the applicant] was a central person in an international network, which coordinated the installation of terrorists in Iraq. Besides [the applicant] the network consisted of the Iraqi national MH and a number of Iraqi, Moroccan and Swedish nationals. In the period from July to December 2006 the network sent out approximately thirty terrorists to Iraq. A number of those persons died subsequently in connection with actions in Iraq. After the arrest of MH in May 2007, [the applicant] took over the coordinating role in Denmark and decided temporarily to stay the sending out of terrorists. In the said report PET has described in more detail the basis for those accusations against [the applicant].

[The applicant] has claimed that the danger to national security referred to in section 25 (i) of the Aliens Act must concern the Danish State. Thus even if the disputed network had assisted with the installation of persons in Iraq, it could not be concluded that he can be deemed a danger to Danish national security.

The Supreme Court notes in this respect that according to the preparatory notes to section 25 (i) of the Aliens Act, the considerations regarding the security of the State relate in particular to those interests covered by chapters 12 and 13 of the Penal Code, and that a provision on deportation in order to protect the security of the State must be viewed as a necessary part of the countries’ preparedness measures when combating international terrorist activities (Folketingstidende 2001/02, L32, tillæg A, p. 772).

In the light thereof, the Supreme Court finds that persons in Denmark who are engaged in a network which assists with the installation of terrorists in Iraq, must be deemed a danger to the security of the Danish State under section 25 (i) of the Aliens Act.

Due to security reasons, the basis for the danger assessment was not disclosed to [the applicant] in connection with the decision thereon by the Minister for Integration or the deportation order by the Ministry, which is in compliance with the rules in force at the time and today as to discovery and reasoning under section 45 b, subsections 1 and 2 of the Aliens Act.

In this case the procedure before the courts is covered by Act no. 487 of 12 June 2009 on the amendment of the Aliens Act, which was inserted in Chapter VII b of the Aliens Act. The Act provides for the possibility to divide the proceedings in an open and a closed part. The confidential material, which has formed the basis for the danger assessment, but which for security reasons cannot be disclosed to the alien, may be submitted under the closed part of the proceedings. Under the open part the alien is assisted by appointed counsel. In order to safeguard the applicant’s interests under the closed part of the proceedings, a special advocate will be appointed, who exercises party rights on behalf of the applicant under this part of the case. The special advocate is not allowed to discuss the closed material available to him with the alien or his counsel, but the alien and his counsel can always make written observations to the special advocate about the case.

The purpose of this special procedure before the courts is to create a balance between, on the one hand, the need for confidentiality of information for security reasons and, on the other hand, the need to secure that there is a real possibility of taking care of the alien’s interests in an efficient manner. Thus, pursuant to the preparatory notes to the Act, the alien must have “access to sufficient information about the accusations against him to enable him to give effective instructions to his special advocate”. In the preparatory notes it is specifically mentioned that there may be cases, “where an administrative deportation order and a possible deprivation of liberty cannot be upheld, because the accusations disclosed in the open material are of such a general character, that the alien is not in a position to give effective instructions to his counsel or his special advocate”, and that the courts cannot uphold a deportation order solely by referring to accusations of a general character or to the closed material in the case.

In its decision of 18 August 2010 (published in the Danish Weekly Law Reports, Ugeskrift for Retsvæsen, 2010, page 2910), the Supreme Court concluded that the rules set out in Chapter VII b of the Aliens Act must be considered compatible with the Convention on Human Rights, and that it cannot be considered in breach of the Convention that those rules apply to cases that have already been initiated.

The Supreme Court finds that the lack of disclosure to [the applicant] of the basis for the administrative danger assessment and the administrative deportation order is not in breach of the Convention or Article 1 of Protocol No. 7 to the Convention. However, the subsequent review by the courts of the danger assessment and the deportation order must live up to the requirements as to discovery etc., set out in the Aliens Act on court proceedings.

The question is thus, what has been submitted as material in the case to illustrate whether [the applicant] must be deemed a danger to national security, and whether the accusations against him have been sufficiently and factually substantiated in a way which respects the legal requirements regarding discovery, etc.

The accusations on which the Minister for Integration based the decision that [the applicant] must be deemed a danger to national security were based, are in the Supreme Court’s view sufficiently and factually substantiated by the material submitted during the open part of the procedure. In this regard, the Supreme Court has notably accorded weight to the contents of the intercepted telephone conversations, in which, among other things, a code language is used. The Supreme Court has also accorded weight to the contents of the e-mails (draft e-mails) and to the contents of [the applicant’s] chat on the Internet. Furthermore, the Supreme Court has accorded weight to the persons involved in, or mentioned during, the intercepted telephone conversations or in the said e-mails (draft e-mails) and chat on the net. Finally, the Supreme Court has accorded weight to the fact that [the applicant] has provided an entirely unreliable explanation of what the telephone conversations and the internet communication concerned.

In the Supreme Court’s opinion, the open material suffices in itself to carry the decision by the Minister for Integration that [the applicant] must be deemed a danger to national security, and no material has been submitted during the closed part which weakens this finding. It should be mentioned in this respect, that during the open part, there has been such specific, concrete and precise information about the basis for the accusations, that [the applicant] has had a real possibility of taking care of his interests in an efficient manner, also during the closed part of the case, including by giving concrete instructions to the special advocate.

Since the open material is sufficient to uphold the danger assessment, it is unnecessary to take a stand on the allegation submitted by the special advocate that there might be information obtained by the use of torture among the closed material submitted to support the danger assessment.

Hereafter, the Supreme Court has found no reason to revoke the decision by the Minister for Integration, that [the applicant] must be deemed a danger to national security.

Accordingly, the Ministry for Refugee, Immigration and Integration Affairs was entitled to deport the applicant with a permanent ban on his return by virtue of section 25(i) of the Aliens Act, compared with section 32, subsection 4, and the Supreme Court endorses that there are no considerations as set out in section 26, subsection 1, which could lead to the annulment of the deportation.

In conclusion, the Supreme Court confirms that the Ministry for Refugee, Immigration and Integration Affairs is acquitted in relation to [the applicant’s] principal claim.

The claim in the alternative

[The applicant’s] claim in the alternative aims to conclude that the decision of 6 May 2008 by the Ministry for Refugee, Immigration and Integration Affairs to deport him with a permanent ban on his return, and to confiscate his alien’s passport, should not have been taken, when the basis for the decision was not disclosed to him.

In support of that claim, [the applicant] has submitted that the administrative deportation order was such a serious interference with his personal freedom, that it should not have been taken without disclosure being secured.

On this basis, the Supreme Court takes a separate stand on this claim, as it cannot be viewed alone as an argument in support of his principal claim.

Nevertheless, referring to the Supreme Court’s finding above as to danger assessment and deportation, [the applicant] did not have a right to disclosure in respect of the administrative decisions thereon.

Thus, the Supreme Court confirms that claim in the alternative submitted by the Ministry for Refugee, Immigration and Integration Affairs for acquittal.

B. Relevant domestic law and practice

The relevant provisions of the Aliens Act (Udlændingeloven), Consolidation Act no. 785 of 10 August 2009 provided:

Section 25

An alien may be expelled if:

(i) the alien must be deemed a danger to national security; or

(ii) the alien must be deemed a serious threat to public order, safety or health.

Section 26

(1) In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of:

(i) the alien’s ties with Danish society;

(ii) the alien’s age, health, and other personal circumstances;

(iii) the alien’s ties with persons living in Denmark;

(iv) the consequences of the expulsion for the alien’s close relatives living in Denmark, including in relation to regard for family unity;

(v) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and

(vi) the risk that, in cases other than those mentioned in section 7(1) and (2) or section 8(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence.

(2) An alien must be expelled under section 22(1)(iv) to (viii) and section 25 unless the circumstances mentioned in subsection (1) make it conclusively inappropriate.

Section 31

(1) An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country.

(2) An alien falling within section 7(1) may not be returned to a country where he will risk persecution on the grounds set out in Article 1 A of the Convention relating to the Status of Refugees (28 July 1951), or where the alien will not be protected against being sent on to such a country. This does not apply if the alien must reasonably be deemed a danger to national security or if, after final judgment in respect of a particularly dangerous crime, the alien must be deemed a danger to society, but see subsection (1).

Part VII a

Exchange of information between the immigration authorities and the intelligence services and the public prosecutor, etc.

Section 45a

(1) Without the alien’s consent, the Danish Immigration Service, the Ministry of Refugee, Immigration and Integration Affairs, the Refugee Appeals Board and the regional state administrations, see section 46c, may transmit information from a case under this Act to the intelligence services to the extent such transmission may be of importance to the handling of security tasks by the intelligence services.

(2) Without the alien’s consent, the intelligence services may transmit information on an alien to the Danish Immigration Service, the Ministry of Refugee, Immigration and Integration Affairs, the Refugee Appeals Board and the regional state administrations, see section 46c, to the extent that such transmission may be of importance to the examination of a case under this Act by these authorities.

(3) Without the alien’s consent, the intelligence services may mutually exchange information as mentioned in subsections (1) and (2).

Section 45b

(1) For the purpose of the examination of a case under this Act, the Minister for Integration assesses on the basis of a recommendation from the Minister for Justice whether the alien must be deemed a danger to national security. This assessment forms the basis of the determination of the case.

(2) The Minister for Justice may decide that the information included in the assessment under subsection (1) may not, for security reasons, be transmitted to the alien assessed. Furthermore, the Minister for Justice may decide that for security reasons information as mentioned in the first sentence hereof may not be transmitted to the immigration authority having to make a decision in the case.

Part VII b

Court proceedings in certain decisions on administrative expulsion, etc.

Section 45d

(1) The rules of this Part apply to court proceedings in cases relating to:

(i) the review of a danger assessment under section 45b or a decision on expulsion under section 25(i);

(ii) the deprivation of liberty of an alien under section 36 for the purpose of ensuring the possibility of expulsion under section 25(i);

(iii) an application for a residence permit under section 7 or 8(1) or (2) from an alien expelled under section 25(i).

(iv) a decision on the return under section 31 of an alien who has previously held a residence permit under section 7 or 8(1) or (2) and has been expelled under section 25(i); and

(v) a decision under section 32b when the alien has been expelled under section 25(i).

(2) Cases falling within this Part must be brought before the Copenhagen City Court by the Minister for Justice or the person so authorised by the Minister. For determining the case, 3 judges will sit. The court may decide that 1 judge only will sit for the hearing of a case on deprivation of liberty under section 36, see subsection (1)(ii). The Minister for Justice or the person so authorised by the Minister may allow persons employed with the National Security Service to appear in his place as process agents.

(3) Bringing a case before the court suspends enforcement of any decision when the alien is staying in Denmark. Bringing the case before the court does not prevent enforcement and continued deprivation of liberty under section 36, see subsection (1)(ii), unless so decided by the court.

(4) Sections 37a to 37e apply correspondingly in cases on deprivation of liberty under section 36, see subsection (1)(ii).

Section 45e

(1) Parties to the case are deemed to be the alien and the person bringing the case before the court under section 45d(2).

(2) The court shall assign counsel to act for the alien. The court shall also assign a special advocate to safeguard the alien’s interests and exercise a party’s rights on the alien’s behalf with regard to information falling within section 45b(2). Concerning legal fees and compensation for outlay to counsel and the special advocate, the same rules apply as in cases where free legal aid has been granted, see Part XXXI of the Administration of Justice Act.

(3) The special advocate under subsection (2) must be notified of all court hearings in the case and is entitled to attend them. The special advocate must be made aware of and be given a copy of the material included in the case before the court. The Minister for Justice or the person so authorised by the Minister may decide that a copy will not be given to the special advocate for security reasons. Upon request from the special advocate, such matter must be brought before the court by the person who brought the case before the court under section 45d(2).

(4) The court shall decide how an alien who resides abroad and is subject to an entry prohibition, see section 32, see section 25(i), will be given an opportunity to make a statement to the court.

Section 45f

(1) Information falling within section 45b(2) will be transmitted to the special advocate assigned under section 45e(2). When such information has been transmitted to the special advocate, he may not discuss the case with the alien or the alien’s counsel and may not speak at hearings at which the alien or his counsel is present. The alien and his counsel may make written communications to the special advocate about the case at any time.

(2) The court may decide on its own initiative or upon request from the special advocate assigned under section 45e(2) that information applied by the Minister for Justice in his assessment under section 45b(1) will be transmitted to the alien and his counsel if the decision of the Minister for Justice under section 45b(2) is not justified by security reasons. The decision is made by order after the special advocate and the person who brought the case before the court under section 45d(2) have had an opportunity to make a statement. The order may be appealed against by the persons mentioned in the second sentence hereof. Appeal against a decision to transmit information suspends enforcement of the decision.

(3) If the court has made a decision under subsection (2), first sentence, the Minister for Justice or the person so authorised by the Minister may decide that the information in question will not be included in the case before the court.

(4) A judge may not sit in the case if he has made a decision under subsection (2), first sentence, or has otherwise had access to information falling within such decision and the Minister for Justice or the person so authorised by the Minister has decided under subsection (3) that the information in question will not be included in the case before the court.

Section 45g

(1) The part of a hearing which concerns or during which information falling within section 45b(2) and not falling within section 45f(2) is produced or considered must be held behind closed doors. This part of a hearing will be attended by the special advocate assigned under section 45e(2), but not by the alien and his counsel.

(2) The court decides how hearings held wholly or partly behind closed doors under subsection (1) are to be conducted.

Section 45h

(1) The court makes its decision after the parties and the special advocate assigned under section 45e(2) have had an opportunity to make a statement.

(2) The court’s decision on deprivation of liberty, see section 45d(1)(ii), is made by order. Section 37(3) to (5) applies correspondingly.

(3) The court’s decision on expulsion, residence permit and return, see section 45d(1)(i) and (iii) to (v), is made by judgment. If the court decides to uphold the decision on expulsion or to refuse a residence permit under section 7 or 8(1) or (2), or that return will not be contrary to section 31, the decision must stipulate a time-limit for departure according to which the alien is ordered to leave Denmark immediately.

(4) For the purpose of the court’s decision under section 45d(1)(iii) to (v), the court requests the Refugee Appeals Board to issue an opinion after the parties and the special advocate assigned under section 45e(2) have had an opportunity to make a statement.

Part VII b, above, concerning “Court proceedings in certain decisions on administrative expulsion, etc.” was inserted by Act no. 209 of 28 April 2009 specifically to create a new model for the procedure and court review in cases concerning administrative deportation of aliens deemed a danger to national security, which would comply with the principles and requirements set out in A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 93 and 215, ECHR 2009). As to the background and content of the bill, the preparatory works read, inter alia:

“The bill proposes to create a new model for the procedure and court review in cases concerning administrative deportation of aliens deemed a danger to national security. The proposed model entails that the Minister of Justice, on the basis of a recommendation by PET, makes an assessment of whether an alien must be deemed a danger to national security, and that thereafter the Ministry for Integration takes a decision on deportation on the basis of the danger assessment made by the Minister of Justice. The proposed model also entails a special access to court review of the danger assessment and the deportation decision, where the evidence will be divided into open and closed material, and where, in a court hearing held behind closed doors, there will be an opportunity to submit the confidential material relied on in the danger assessment made by the Minister of Justice, and where the aliens’ interests will be safeguarded by a special advocate. It is a condition, though, that the alien has access to sufficient information about the accusations against him, enabling him to give effective instructions to the special advocate. Finally, the proposed model entails that the power to deal with asylum legal questions relating to the possibility of deportation in this kind of case, is transferred from the aliens authorities to the courts.”

“With [this new model] the Government have attempted to achieve a joint overall solution for court review in this kind of case. [As mentioned below] the Court of Human Rights has, in a judgment of 19 February 2009 in the case A. and Others v. United Kingdom, approved a solution concerning court review of the legality of deprivation of liberty, where the evidence is divided into open and closed material, and a special advocate is appointed for the deportee. However, according to the Court it is a condition that the deportee, via the open material, has access to sufficient information about the accusations against him, so that he is capable of giving effective instructions to the special advocate. It should be noted in this connection, that also in cases being dealt with under the new proposed rules, there might be incidents where the courts will find that the administrative deportation and a possible deprivation of liberty cannot be upheld, because the submitted accusations in the open material are of such a general character that the alien at issue is not capable of giving effective instructions to his counsel or the special advocate.”

“In a series of cases, the Court has further pronounced on the demands which it requires of a court review regarding an administrative deportation and, in that connection, the underlying actual danger assessment. The relevant provisions are Article 8 ..., Article 13 ... and Article 1 of Protocol No. 7...

In Al-Nashif v. Bulgaria, judgment of 20 June 2002, concerning the question of court review of an administrative deportation in such cases, the Court stated that there must be some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations due to the classified information. In the same judgment, as to the interpretation of Article 13, the Court stated that the guarantee of an effective remedy under the said provision requires that the competent independent appeals authority must be informed of the reasons justifying the deportation decision, even if such reasons are not publicly available. In this connection the Court emphasised that the appeal authority must be competent to reject the executive’s assertion that there is a threat to national security where it finds it arbitrary or unreasonable. There must be some form of adversarial proceedings, if need be through a special representative after security clearance. Furthermore, the question of whether the impugned measure would interfere with the individual’s right to respect for family life and, if so, whether a fair balance is struck between the public interest involved and the individual’s rights, must be examined. The Court has repeated those statements in subsequent judgments about administrative deportation of aliens deemed a danger to national security, most recently in C.G and Others v. Bulgaria, judgment of 24 April 2008.

The Court’s judgments on the interpretation of Article 1 of Protocol No. 7 in cases concerning deportation of such aliens have not resulted in further demands being required of the court review of the administrative deportation decision than already follow from the Court’s jurisprudence under Articles 8 and 13.

Pursuant to the bill, the proposed court control of the deportation decision by the Ministry for Integration may result in the annulment of the deportation, for example because the danger assessment is not found sufficiently reasoned, or - even if the danger assessment is found to be reasoned - because the deportation does not to a sufficient degree respect the relevant person’s right to family life under Article 8. The procedural limitation, that the interest of the alien is safeguarded by a special advocate, including through the latter’s access to the closed material and during a court hearing behind closed doors, is necessitated by the classified character of PET’s material. It is the opinion of the Ministry for Integration that the proposed solution hereafter lives up to the requirement under Articles 8 and 13 regarding “some form of adversarial proceedings, if need be through a special representative after security clearance” as established by the Court in the aforementioned case-law on deportation of aliens, deemed a danger to national security.

Against this background it is the view of the Ministry for Integration that the proposal to introduce a strengthened court review of both the Minister of Justice’s assessment of whether the alien must be deemed a danger to national security, and the Ministry for Integration’s decision on deportation will comply with Article 8 and 13 of the Convention, and Article 1 of Protocol No. 7.”

Article 63 of the Constitution read as follows:

The courts have authority to adjudge on any matter concerning the limits to the competence of a public authority. However, anyone wishing to raise such matters cannot avoid temporarily complying with orders issued by the public authorities by bringing them before the courts.


No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The first applicant is a French national who was born in 1970 and lives in Mouroux. He is the brother of the victim, M.B. born in 1968.

The second, third, fourth, fifth and sixth applicants, who were born in 1977, 1973, 1972, 1939 and 1951 respectively, are the victim’s sister, widow, brother, father and mother. They live in Mouroux, Massy, Valentigney and Thulay respectively.

On 12 November 2009, at about 4.30 p.m., M.B., who was 1 m 80 tall and weighed about 100 kilos, went into a pharmacy in Valentigney. He was known to the staff there, where he habitually went to collect the medicine prescribed for his psychiatric disorders.

M.B. asked to exchange some medicine dispensed without a prescription, saying he was not satisfied with it. A pharmacist’s assistant, Ms R., and the owner of the shop, Mr F., explained to him that the effects of the medicine had diminished because he had become addicted to it. M.B. started to become angry, throwing the medicine boxes on the floor, raised his voice and started speaking incoherently:

“I’m fed up with your night visits, with your assistant and with you!”

M.B. told Mr F. that he intended to file a complaint against him. Mr F asked Ms R. to call the police. M.B. sat down on one of the chairs for customers at the pharmacy.

At 4.53 p.m. four police officers arrived on the scene after receiving a call from the incident room instructing them to intervene in an incident involving an individual with psychiatric disorders.

Deputy police sergeant L. and police constable M. asked M.B. several times to accompany them out of the pharmacy. When he vehemently refused, sergeant L. and constable D. seized him by the arm in order to remove him from the pharmacy. Constable M. seized M.B. by his right leg. M.B. struggled and called for help.

At the doorstep up to the pharmacy M.B. found himself on the ground. Constable M. attempted to handcuff him behind his back while he continued to struggle and appeal to the police for help. Constable M. punched M.B. twice in the solar plexus but still did not succeed in handcuffing him.

M.B. was then turned onto his right side and constable D. was able to handcuff him in the front with two pairs of interlinking handcuffs.

Deputy police sergeant P. went to get the police vehicle to move it closer to the pharmacy. Two police officers seized M.B. by the arm in order to put him in the van. Despite putting up resistance, M.B. was forced inside the police van.

M.B. continued struggling and shouting in the police van and pushed one police officer against the luggage holder above and another against a shelf before falling face downwards. Deputy police sergeant L. positioned himself above his shoulders in order to fasten another pair of handcuffs attaching M.B. to the fixed part of the back seat in the van. Constables D. and M. positioned themselves on top of him, on his legs and on his buttocks.

At 4.58 p.m., that is, exactly five minutes after they had arrived, the three police officers present in the vehicle contacted their headquarters requesting assistance from the fire brigade and the mobile emergency medical service (SAMU).

According to the incident room’s telephone log, at 5.07 p.m. the fire brigade asked the police to transfer M.B. to their vehicle. Deputy police sergeant L. refused to do so on grounds of M.B.’s extremely agitated state.

The firemen then drew up a record of M.B.’s condition. He had calmed down, but his heart rate could not be measured with the pulse oximeter because the sensors were not working. One of the firemen constantly monitored his breathing, which stopped at one point. A fireman noted the absence of blood circulation.

The team of firemen brought M.B. inside the pharmacy. One of them alerted the ambulance service by radio. The firemen inserted a semi-automatic defibrillator and started carrying out cardiac massage.

An emergency doctor from the mobile emergency and intensive care service (SMUR), called out by the firemen, administered specialist cardiopulmonary resuscitation. He recorded M.B.’s death at 6.02 p.m.

An investigation into the cause of M.B.’s death was commenced immediately.

Of the three pharmacists who gave a statement that day, on 12 November 2009, two were present when the police officers had asked M.B. to leave the premises. They confirmed that when M.B. had refused to comply, the police officers had approached him and seized him. They said that M.B. had begun shouting and struggling at that point and had continued shouting and struggling when he had got into the police van, handcuffed. None of the three witnesses had seen what had happened in the police van.

One of them stressed the fact that M.B. had been a customer at the pharmacy for a year and a half and had always been very pleasant during his monthly visits to collect his neuroleptics prescription.

On the same day Mr S., a volunteer firefighter, was also questioned. He stated that on his arrival M.B. had still been in a highly agitated state, lying face down in the van, with the police officers restraining him: one either sitting or kneeling on the victim’s buttocks, and the other holding his legs; his hands were outstretched and fastened by several handcuffs to the back seat of the van; the victim’s head was on the driver’s side, and his right cheek face down on the floor. He explained that he had requested medical reinforcements and that then, when they observed that his heart had stopped beating, the firemen had decided to take him back into the pharmacy to continue carrying out cardiac massage.

On 13 November 2009 one of the pharmacists was questioned a second time. He stated that M.B. had been a regular customer at the pharmacy. He said that the police officers had not hit M.B.

Constable M. was questioned the same day. He stated that deputy sergeant L. had introduced himself to M.B. and had asked him to come outside “to explain the problem, as in this type of intervention the aim is to separate the parties”. He explained that M.B. had refused to leave the pharmacy several times despite repeated requests by the police, who had finally dragged hm towards the door. He said that he had then seized M.B.’s right leg and that, just in front of the entrance to the pharmacy, M.B., who had lost his balance, had fallen down. He added that the police officers had then attempted to handcuff him and that when he had resisted attempts to put him in the police van constable D. had pulled his legs, which had unbalanced him and caused both of them and deputy police sergeant L. to fall over in the police van. He said that L. had managed “I don’t know how to pin him back down on the ground”. He also said that in order to finish handcuffing him deputy sergeant L. had squatted down on M.B.’s shoulders while constable D. remained at leg level; as M.B. had continued struggling, he himself had stood on his buttocks. He stated that they had remained “like that for a while, but I cannot tell you how long, it felt like a long time, with me on his buttocks, my colleague on his shoulders and the third officer on his feet, assisted by P., who had crossed his legs to stop him moving. It was then that the fire brigade arrived”.

Deputy sergeant L. was also questioned on 13 November 2009. He stated that he had received instructions from his headquarters to go to a pharmacy and had been informed that M.B. “suffered from psychiatric disorders”. He confirmed that M.B. had put up a violent struggle before letting himself slide to the ground in front of the entrance to the pharmacy. He explained that constable M. had administered two punches to the abdomen, using a technique known as “diversionary blows”. As regards the rest, he confirmed the above-mentioned conditions in which M.B. had been handcuffed in the police van.

An autopsy was carried out on 13 November 2009. The forensic doctor described and explained the traumatic injuries observed: the injury to the left eyebrow and the associated swelling did not suggest injuries following a blow but were related to an impact by that part of his face on a ridged surface. The other facial injuries suggested close contact on a rough surface. The injuries to the wrists were characteristic of handcuffing. Those to the lower part of the chest and in the abdominal cavity could have been incurred as a result of two violent blows to that area. The forensic doctor specifed that the injuries had caused neither internal bleeding nor fractures. He mainly noted marks on the lungs and 70% stenosis on a heart artery. Dr H.’s report, drawn up on 16 November 2009, contained the following conclusions:

“Death in all likelihood occurred as a result of heart failure.

An atheromatous attack observed on an artery of the heart exposed him to a severe risk of cardiac rhythm disorders and sudden death.

The state of stress and agitation presented by the victim on his arrest may have contributed to heart failure.

Restriction of chest expansion may have occurred when the victim was restrained, but it cannot be affirmed that mechanical asphyxiation was the cause of death. ...

Recent traumatic injuries consistent with action by third parties were observed. In any event, the various injuries did not directly contribute to the death; nor is there any injury consistent with blows to the face.”

On 14 and 23 November 2009 Ms S., a shopkeeper, was questioned and stated that she had heard shouts from her shop opposite the pharmacy. She said that she had seen four police officers with a man lying face down with his arms behind his back being punched and kicked. Through a side window of the police van she stated that she had seen a female and a male police officer trampling on the spot while hanging on to the roof of the van, one administering three punches in a downwards movement and lifting his knee up very high before bringing it down in one sharp movement.

On 23 November 2009 the shopkeeper’s minor son was questioned and stated that he had seen two police officers trampling on M.B. in the road and that a female police officer had hit him several times with a truncheon in the stomach, back and face.

On 3 December 2009 a judicial investigation for manslaughter was opened in respect of a person or persons unknown and assigned to two investigating judges.

On an unknown date the applicants applied to join the proceedings as civil parties.

On 7 January 2010 Ms C., a neighbour next to the pharmacy, stated that she had seen M.B. struggling, face downwards, outside the pharmacy. She said that the police officers had “thrown him into the van” and that she had left after the doors were closed. She stated that the police officers had not hit M.B.

On 21 January 2010 chief brigadier M. D., an instructor in defence and arrest techniques and in the psychological and behavioural aspects of police intervention, was heard as a witness. He stated that in the event of a dispute between people, “the opposing parties should in so far as possible be separated”: the police officers, in attempting to induce the M.B. to leave the pharmacy, had sought to avoid a fight in the shop. He said that the blows administered by constable M. and described as “two punches to the suspect’s abdominal area with the aim of distracting and and securely handcuffing him [were] among the priority areas for attempting to weaken the resistance of the person concerned. They [the police officers] had not been over zealous and had completed the handcuffing in the front. The officers had also acted in an emergency situation. The technique used by constable M. appear[ed] the most appropriate in the context of the intervention”. He added that all the techniques taught were designed to weaken resistance to arrest. He specified that, with regard to the immobilisation of M.B. in the van, standing on a person’s buttocks was not among the techniques taught and that positioning oneself across M.B.’s shoulders, as sergeant L. had done, was one of the procedures taught. That technique enabled the officer to prevent the suspect from moving while avoiding postural asphyxiation. He concluded that the intervening officers, having regard to the context of the intervention, had acted with pragmatism and discernment.

Reports were produced by several experts appointed by one of the investigating judges. On 23 June 2010 Dr L., professor of forensic medicine, and Dr R., lecturer in forensic medicine, provided a forensic medical report after examining M.B.’s body on 18 December 2009. They stated that their examinations had revealed “a series of cutaneous lesions that could not have contributed to the death”. They did not indicate evidence of any “factor suggesting death by chest compression”. There was thus no evidence of “petechial subconjunctival injuries or of facial petechial injuries”. They stated as follows:

“our examination of the sealed evidence has not revealed any elements indicating the cause of death of [M.B.]. The sealed evidence shows that he was receiving psychiatric treatment for psychosis with several episodes of hallucination requiring the regular ingestion of antipsychotic medicines. ... At the levels measured, the ingestion of psychoactive drugs revealed by the toxicological investigations does not appear capable of explaining the victim’s death by a process of direct toxicity. ... In conclusion, the death of [M.B.] ... is in all likelihood the result of myocardial failure. The death is due to natural causes.”

On 10 December 2010 Dr T. and Dr F. produced their anatomopathological expert report after examining a copy of the autopsy report of 16 November 2009, a copy of the interviews with the members of the police patrol team who had arrested M.B., a copy of the record of examination of two witnesses, various sealed samples collected both by Dr H. and by Professor L. and Dr R.:

“[M.B] died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress. ... In conclusion, the intense and prolonged emotional stress, and the prolonged and severe agitation, which started in the pharmacy and contined during the arrest explain the series of physiopathological phenomena which caused the death: (1) intense stimulation of the sympathetic nervous system (adrenergic neuro-hormonal system), (2) coronary-ischemic spasm, (3) fatal cardiac rhythm disorders.”

On 14 and 16 December 2010 and 19 January 2011 the four police officers appeared for the first time as assisted witnesses.

On 8 April 2011 a reconstruction was organised, by the two investigating judges in charge of the case, in the presence of the civil parties’ lawyers and the assisted witnesses. During the visit to the scene the forensic doctor stated that he had not noted any traumatic injury consistent with the violence described by the witness Ms S, the only injuries suggesting direct action by a third party being those corresponding to the punches administered to the stomach.

On 5 July 2011 Dr C., university professor, neurologist and psychiatrist, and head of a forensic medical department, examined M.B.’s medical file at his psychiatrist’s surgery, his medical file at the casualty department of Montbéliard Hospital, and the medical file kept by M.B.’s general practioner. He stated that M.B., who had been receiving psychiatric care for many years, had been admitted to a hospital psychiatric unit several times and presented a psychotic disorder characterised by delusional notions of a betwitching, persecutory and interpretative type During his most recent hospital consultation he had been diagnosed with paranoid psychosis, which is related to schizophrenia. Dr C. concluded his report as follows:

“[M.B.] presented a serious psychiatric disorder, namely, delusional psychosis, which explains the initial altercation with the pharmacist and his subsequent state of extreme agitation when the police officers attempted to induce him to leave the pharmacy. It is also possible that the intervention by the police was interpreted in a delusional manner.

When the SMUR [mobile emergency and intensive care service] intervened the criterion of seriousness was ... the fact that [M.B.] had been suffering from heart failure for approximately twenty minutes.

The superficial injuries observed, during the autopsy, to the right-hand side of the face and the front of the knees [appear to him] compatible with immobilisation on the floor of the van and the petechial injuries to the upper abdomen and the left abdominal region are compatible with punches administered as described in the autopsy report.”

On 25 November 2011 the Ombudsman, an institution independent of the State, having the task, inter alia, of ensuring compliance by the police with their code of professional ethics, to whom a member of parliament had submitted the case, produced a report. He found that whilst the police officers had been very quick to seek the assistance of the fire brigade and the emergency medical service, it was regrettable that the situation had been inaccurately described by the incident room to the firemen prior to their intervention (the latter had been informed of M.B.’s “withdrawal symptoms”). He considered that there had been no imminent danger to people or property in the pharmacy and thus no urgent need to remove M.B. as soon as possible. He stated that the immobilisation and compression procedures carried out in the van had been dangerous and disproportionate. He described as “amouting to a serious infringement of human dignity and to inhuman and degrading treatment within the meaning of Article 3” the techniques used by constables D. and M. to pin M.B. to the floor of the police van. The Ombudsman also noted conflicting statements by the police officers regarding whethere there had been physical violence other than the two diversionary blows and pointed out that no witnesses had been present throughout the entire incident. The Ombudsman concluded that the precipitation with which the police had acted had led them to make an erroneous assessment of M.B.’s situation and to react in a stereotypical manner rather than adjust their conduct during the intervention, despite the fact that they knew that M.B. was receiving treatment for psychiatric disorders and that they had been able to observe abnormal behaviour on his part. He recommended reinforcing the initial and continuous training of police officers with regard to dealing with persons suffering from a mental disorder. Lastly, he recommended that disciplinary proceedings be brought against the four police officers who had arrested M.B. for “disproportionate use of force or failing to cease using such force”.

On 18 January 2012 Dr T. and Dr F. supplemented their expert report of 10 December 2010. They confirmed the conclusion of their earlier report and ruled out mechanical asphyxia: “M.B. died suddenly of cardiac rhythm disorders, with no occurrence of mechanical asphyxia.” They reiterated the part played by extreme stress in the death, stating that “the adrenergic stimulation was related to the extreme and prolonged emotional and physical stress. The stress lasted approximately one hour and thirty minutes, starting in the pharmacy and continuing throughout the arrest”.

On 26 March 2012 the four police officers who had arrested M.B. were charged with manslaughter as a result of the manifestly wilful violation of a legal or statutory duty of caution and security.

On 5 November 2012 the the public prosecutor at the Montbéliard tribunal de grande instance filed submissions recommending that the charges be dropped.

On 21 December 2012 the investigating judges ruled that there was no case to answer. They found that whilst it was true that M.B. had been in a relatively calm state, the pharmacist had nonetheless considered his behaviour sufficiently disturbing to inform the police of the presence in his establishment of a person in an agitated state and suffering from psychiatric disorders. They observed that the police officers had not immediately used force and that, on being informed of M.B.’s pyschiatric pathology, they had called the emergency medical service. The judges found that the evidence given by Ms S. had been invalidated by the observations made during the reconstruction, the statements made by the pharmacists and the conclusions of the forensic doctor. The investigating judges observed as follows:

“ ... pinning [M.B.] to the ground was not identified by the medical experts as the direct cause of the death. Whilst the intervention by the police inevitably generated stress, the victim had already been stressed well before their intervention. As the police did not know about [M.B.’s] heart disease, of which he himself was unaware, they could not foresee that the combination of these two factors [stress and heart disease] could create a risk for the victim.”

The judges considered that the force used by the police officers had been necessary and proportionate “even if being pinned down in the van, by L. and P. and M.’s position – standing on [M.B.’s] legs – may appear objectionable in absolute terms”.

The applicants appealed against that ruling. On 16 October 2013 the Investigation Division of the Besançon Court of Appeal upheld the decision finding no case to answer on the following grounds:

“[M.B.’s death was due] according to the forensic doctor who carried out the initial autopsy ... to heart failure in circumstances of stress and effort acting on a predisposed heart condition; the second forensic report supported the finding of cutaneous injuries that could not have been a contributory cause of death and ruled out death due to chest compression; the experts indicated that the death of [M.B.] was, in all likelihood, the result of myocardial failure and natural causes; the anatomopathological report ... [led] the experts to conclude that [M.B.] had died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress, and formally ruled out mechanical asphyxia; lastly, the forensic and psychiatric expert ... concluded that [M.B.] presented a serious psychiatric disorder ... which explained the initial altercation with the pharmacist and the ensuing state of extreme agitation when the police officers attempted to induce him to leave the pharmacy, as their intervention could have been interpreted in a delusional manner”.

With regard to the conditions of arrest, the Investigation Division found that the agitated state and the “recalcitrant, not to say violent, behaviour of [M.B.] had obliged the police officers to use force and intervention techniques, which they had been taught, to restrain him”, including the two punches administered by constable M. “who explained that he had used a technique taught to police officers to assist in handcuffing suspects by creating a surprise effect, that explanation being confirmed by his colleagues and instructor”. The Investigation Division found that M.B. had been pinned to the floor of the van in conditions that had been “admittedly unusual, or even objectionable”, but that these had preserved the respiratory capacity and ventilation of a person who “was continuing to oppose strong resistance to the police officers”. It concluded that “no inadvertence, lack of care, inattention, negligence or breach of a statutory or legal duty of protection or care, or gross negligence [could] be attributed [to the police officers] in the death of [M.B.]”.

The applicants appealed on points of law. On 18 November 2014 the Court of Cassation dismissed their appeal on the following grounds:

“ ... the Court of Cassation is satisfied on the basis of the grounds of the judgment being appealed that in upholding the decision finding no case to answer the Investigation Division, after analysing all the facts referred to it and addressing the main grounds in the statement of appeal, gave sufficient and coherent reasons for their finding that the investigation had been thorough and that there was insufficient evidence on which to convict the persons charged with of manslaughter or any other offence ...”


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicant was born in 1982 and was detained in Moscow until his extradition to Belarus.

On 10 September 2010 the applicant was arrested in Moscow pursuant to an extradition request from the Belarus authorities. On the following day the Dorogomilovskiy District Court of Moscow ordered his detention.

The applicant’s detention was subsequently extended by judicial orders on several occasions, in particular, on 28 February and 2 June 2011. Both the applicant and his lawyer lodged their statements of appeal against these detention orders with the Moscow City Court, which upheld them on appeal on 11 April and 18 July 2011, respectively.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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. In application no. 26708/13 the applicant also raised other complaints under the provisions of the Convention.


Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant, Mr A.R., is a Tajikistani national, who was born in 1976.

The applicant, who has been granted legal aid, is represented before the Court by Ms I. Sokolova, a lawyer practising in Ivanovo.

The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

According to the applicant, he joined the Democratic Party of Tajikistan in 1996. At that time it was, and apparently it remains, in opposition to the ruling regime. Following a murder attempt in 1997 against the Tajikistani President, some members and supporters of the party were reportedly arrested and tortured. Allegedly, the applicant was also arrested during that time. He submitted that he had been tortured by way of blows to his hands, back and head, causing loss of vision in his right eye. He had declined the offer to collaborate with the Secret Service on the party members and their activities. The party has now split into two factions: one is apparently loyal to the ruling regime, while the other is led by supporters of the former leader of the party, Mr Iskandarov (see Iskandarov v. Russia, no. 17185/05, 23 September 2010), who have been persecuted.

Fearing persecution, the applicant left for Kazakhstan. Allegedly, in 2000 the authorities were looking for him and arrested his brother. The applicant went back to Tajikistan between 2000 and 2004 (allegedly, remaining in hiding). In 2004 he obtained a new passport from the Tajik authorities (allegedly, through an acquaintance).

The applicant arrived in Russia in 2007. It appears that at the time Tajik nationals did not require a visa to enter Russia.

Since 2007 the applicant has been living in Russia in an unregistered relationship with Ms Z.

The applicant and Z. have two children together, born in 2008 and 2011. It appears that Z.’s first child, who was born in 1996 from her previous relationship, has been residing with Z. and the applicant. Z. and the children are Russian nationals.

In May 2011 the Migration Authority of the Ivanovo Region granted the applicant a temporary residence permit valid until May 2014.

In December 2011 Mr Ts. informed the Ivanovo office of the Federal Security Service (“the FSB”) that the applicant had given him several publications about Hizb-ut-Tahrir, a prohibited organisation in Russia.

In November 2012 the Ivanovo regional prosecutor applied to the Oktyabrskiy District Court, Ivanovo (“the District Court”), asking it to classify those publications as “extremist”. The court granted his request. The applicant was not party to the proceedings.

On 13 February 2013 the FSB interviewed the applicant, having informed him of his right not to testify against himself. According to the interview record, the applicant stated as follows: in 2002-03 he had studied Islam with his friend, reading together various writings, inter alia, calling for the creation of an Islamic Caliphate; in 2007 he learnt that the Tajikistani Security Service had arrested his friend and some of his relatives; fearing arrest himself, he had moved to Moscow where he obtained a work permit; there he met two Kyrgyz nationals who appeared to be supporters of Hizb-ut-Tahrir; a year later one of them provided the applicant with some publications, which he then gave to Ts.

According to the applicant, an FSB officer told him that the Tajik authorities “were looking for him”.

The FSB wrote to the regional migration authority recommending that the applicant’s residence permit be annulled.

On 27 February 2013 the authority annulled the residence permit on the basis of section 7 of the Foreigners Act (see paragraph 40 below). The applicant was informed that he could seek judicial review of the annulment decision or re-apply for a temporary residence permit in a year’s time; that he was obliged to leave Russia within fifteen days; and that if he failed to leave the country he would be deported.

The applicant did not seek judicial review of the annulment decision. However, he appointed a lawyer and they both considered that given the imperative indication in section 7 of the Foreigners Act, there would be no prospect of success in claiming reinstatement of the residence permit on account of a risk of death or torture if the Tajik authorities became aware of the findings made by the Russian FSB in respect of the applicant. Instead, in December 2013 the applicant decided to attempt to regularise his stay in Russia by applying for refugee status (see paragraph 23 below). For this purpose, his lawyer obtained access to the case file concerning the residence permit. According to the lawyer, the file contained only the FSB’s letter to the migration authority (see paragraph 14 above).

On 5 March 2014 the FSB issued the applicant with a “warning” (предостережение) against “unacceptable actions that create a basis for committing crimes falling within the FSB’s competence” (see paragraph 44 below). The warning read as follows:

“[The applicant] has expressed his intention to take part in the activities of the international terrorist organisation Hizb-ut-Tahrir, which has been classified as ‘terrorist’ by the Russian Supreme Court. The indicated actions create a basis for committing crimes under Article 205.5 of the Criminal Code”.

Subsequently, the applicant denied membership of Hizb-ut-Tahrir or participation in its activities.

The applicant’s lawyer challenged the “warning”, indicating that the FSB’s allegations in respect of the applicant were unsubstantiated; he had never been a member of the prohibited organisation; and none of his previous actions or utterances had indicated an intention to take part in the activities of that organisation. The lawyer also challenged the “warning” as being an unsubstantiated and disproportionate interference with the applicant’s private life, exposing him to a risk of removal to Tajikistan and of ill-treatment there on account of the Tajik authorities’ awareness of the FSB’s suspicion in respect of him.

On 20 May 2014 the District Court upheld the “warning” on judicial review. The court stated that Ts.’s and the applicant’s own testimonies confirmed that the applicant had had contacts with people who were implicated in the activities of the prohibited organisation; as confirmed by Ts., the applicant had handed over to him publications that had an “extremist” content, as then confirmed by a court. The Russian legislation prohibited dissemination, possession and production of extremist material. In certain circumstances those actions constituted an offence; an extremist activity was also punishable in criminal law, civil law and otherwise. The “warning” had not violated any of the applicant’s rights or freedoms.

The applicant appealed, arguing that nothing in his own statement to the FSB had disclosed an intention to take part in the “activities of the prohibited organisation” or elements of corpus delicti under Article 205.5 of the Russian Criminal Code; the impugned events dated back to December 2010 while the “warning” was meant to concern some continuing activity; the applicant had no knowledge of the “extremist” content of the publications, which was only subsequently established by a court in proceedings to which he had not been a party. The applicant concluded that in substance the proceedings against him and the resulting “warning” amounted to a finding of criminal guilt without either the benefit of a judicial procedure or the attending safeguards of criminal proceedings, including the presumption of innocence (Articles 49 and 118 of the Russian Constitution).

On 13 August 2014 the Ivanovo Regional Court dismissed the applicant’s appeal. The appeal court discarded as “farfetched” the arguments under Articles 49 and 118 of the Constitution and endorsed in substance the reasoning of the District Court. On an unspecified date, the Regional Court rejected the applicant’s subsequent appeal on points of law. It appears that in March 2015 the Supreme Court of Russia rejected the second appeal on points of law.

After the annulment of his residence permit, in December 2013 the applicant applied to the regional migration authority seeking refugee status.

The applicant submitted that as an ordinary member of the Democratic Party of Tajikistan, he had attended meetings and complied with the leaders’ orders; after the attempted assassination of the Tajik President in 1997, he had been arrested and tortured (blows to his fingers with a gun handle and blows to his spine and head); he had left for Kyrgyzstan and had then returned to Tajikistan, where he had stayed in different towns until late 2006.

By decision of 14 March 2014 the regional migration authority dismissed the applicant’s application for refugee status and ordered him to leave Russia within three days.

In reply to a request from the applicant’s lawyer, on 6 May 2014 the Moscow office of the United Nations High Commissioner for Refugees (“the Moscow UNHCR office”) issued an information document. Referring to some of the findings made in the 2013 United Nations report on Tajikistan and some other reports, the UNHCR office made the following comments:

“In view of the numerous violations of human rights and fundamental principles of international law by the Tajik authorities, the widely used practice of torture and cruel treatment at the hands of law enforcement officers, in particular with the aim of extracting confessions in criminal cases ... the UNHCR considers that people who are suspected in relation to political activities of a religious nature run a real risk of persecution in the form of torture in Tajikistan ...

Therefore, having regard to the international instruments ratified by Russia, in no circumstances should Mr R. be extradited, as he is seeking asylum on account of a risk of torture if returned to the country of nationality.

We hope that this information will be taken into account during the examination of your client’s case.”

The applicant sought judicial review of the refusal to grant refugee status, contesting the reliance on the document of 14 January 2014 as the migration authority’s only source of information about Tajikistan. He referred to the Court’s findings in the Iskandarov judgment mentioned above and a number of other sources.

By a judgment of 8 May 2014 the District Court upheld the decision of 14 March 2014. The court stated, inter alia, that had the applicant had genuine reasons for seeking asylum, he would have made an application immediately after his arrival in Russia. The applicant appealed. On 21 July 2014 the Regional Court dismissed the applicant’s appeal.

Having been unsuccessful with his application for refugee status (see paragraph 25 above), in April 2014 the applicant applied to the regional migration authority for so-called “temporary asylum” (see paragraph 43 below).

On 10 July 2014 the authority dismissed the application. On 3 October 2014 the Federal Migration Authority upheld the lower authority’s decision.

The applicant sought judicial review of the refusal of temporary asylum. He argued that the migration authority had not assessed whether the FSB’s warning on suspicion that he might commit a criminal offence of an extremist nature substantiated his argument that he was at risk of illtreatment at the hands of the Tajik authorities, who were aware of the FSB’s warning.

On 11 December 2014 the District Court upheld the decision to refuse temporary asylum. On 25 February 2015 the Ivanovo Regional Court dismissed an appeal lodged by the applicant. On 29 June 2015 the same court dismissed a subsequent appeal on points of law lodged by the applicant. The applicant lodged a second appeal on points of law before the Supreme Court of Russia, which dismissed that appeal on 14 September 2015.

The applicant unsuccessfully sought an extension of his permission to stay in the country pending appeals against the decision to refuse him temporary asylum. On 8 September 2014 the District Court upheld the decision. On 17 November 2014 the Regional Court upheld the judgment on appeal. It appears that a subsequent appeal on points of law lodged by the applicant was dismissed in April 2015.

Allegedly, the applicant has been subjected to covert supervision by law-enforcement officials wearing plain clothes; questions about him were raised with his neighbours; and his relatives in Tajikistan were questioned and their homes searched. Since February 2015, the applicant has not left his home, fearing abduction with a view to forcibly transferring him to Tajikistan.

In May 2015 the applicant’s lawyer asked the migration authority about their intention to expel the applicant. No reply has been received.

It appears that the applicant has applied to the UNHCR office for help with resettlement. That request is pending.

According to the applicant, on an unspecified date in 2015, officers from the Tajik Security Service arrested his brother; he was subsequently released but was required to assist the authorities in obtaining the applicant’s return to the country.

It appears that the applicant is currently considered as a foreigner “temporarily present in Russia”, which, according to him, gives him an opportunity to move within the region but not to work.

The Foreigners Act (Federal Law no. 115-FZ of 25 July 2002) provides that a foreigner can be temporarily present on Russian territory for a period specified in a visa or, for foreign nationals not required to obtain a visa, for ninety days unless otherwise provided for by the Act (section 5).

Section 7 of the Foreigners Act requires that a temporary residence permit be annulled if the foreigner (i) has expressed himself in favour of a radical change in the constitutional regime of the Russian Federation or, by way of other actions, poses a threat to the security of the Russian Federation or its citizens; (ii) has made financial contributions or planned terrorist or extremist acts, has provided assistance to others in the commission of such acts, or has supported terrorist (extremist) activities by way of other actions.

After the annulment of a temporary residence permit or a residence permit, the foreigner concerned must leave Russia within fifteen days; failure to do so will lead to deportation (section 31 of the Act).

A decision to deport should be taken by a chief officer of the local migration authority (paragraph 6 of the Instruction issued by order no. 240 of 12 October 2009 by the Federal Migration Authority).

Section 12 of the Refugees Act provides that temporary asylum may be granted where (i) the foreigner has grounds for acquiring refugee status but only requests a possibility to remain in Russia for some time; or (ii) the foreigner has no grounds for acquiring refugee status but should not be expelled from Russia for “humanitarian reasons”. Having received temporary asylum, the person may not be returned against his will to the country of nationality or the country of habitual residence.

Sections 13 and 13.1 of the Federal Security Service Act (Federal Law no. 40-FZ of 3 April 1995) provides that, in the absence of grounds for instituting criminal proceedings, the FSB has competence to issue and inform the person concerned of an “official warning” (официальное предостережение) about unacceptable actions that create conditions for the commission of certain crimes. Such a “warning” is classified as a measure of prevention (мера профилактики) that may be implemented for the purpose of preventing the commission of such criminal offences.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was born in 1955 and lives in Mielec.

The applicant is married and has four children born in 1982, 1984, 1986 and 1994. Prior to his application for an early-retirement pension he had been unemployed with no right to unemployment benefit.

On 31 May 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension.

Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist medical centre. The certificate stated that the child (born in 1994) suffered from chronic asthma and that she was in need of her parent’s constant care.

On 31 July 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 870.83 Polish zlotys (PLN). The pension was granted with retroactive effect of 1 May 2001.

On an unknown date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.

On 18 July 2002 the Rzeszów Social Security Board reopened the pension proceedings and, on 8 August 2002, the Board refused the applicant the right to early retirement and discontinued the payment of the pension with effect of 1 August 2002.

The applicant appealed against the decision divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights.

On 24 October 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) amended the challenged decisions and granted the applicant the right to early retirement pension with effect of 1 August 2002. The Regional Court found that the applicant could not bear the responsibility for the mistake made by the administrative authorities. It further held that the pension proceedings could not be reopened in this case because no new circumstances had arisen; the reopening decision was based on the same circumstances freshly assessed.

The Rzeszów Social Security Board appealed against the firstinstance judgment.

On 17 March 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the first-instance judgment and dismissed the applicant’s appeal against the Social Security Board’s decisions. It held, among other things, that the Social Security Board based its decisions on evidence which did not constitute basis for the original decision granting the applicant the early retirement pension, namely medical documentation concerning the applicant’s daughter.

On 22 June 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant’s lawyer.

Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension.

The Government submitted that after the revocation of the applicant’s pension, he was employed between 6 and 8 August 2002, between 2 October and 31 December 2002, 19 January and 31 May 2003, 10 August and 10 October 2003, 3 November and 31 December 2003, 13 January and 6 November 2004, 30 July and 4 August 2005, 19 and 23 June 2006, 30 July and 8 December 2008. According to the Government’s submissions the applicant was receiving an unemployment benefit for one year between January 2005 and January 2006 and, subsequently for 3 months in 2009.

The Government further submitted that the applicant’s income represented some 12.11% of the average remuneration in Poland in 2002 27.99% in 2003, 29.09% in 2004, 21.91% in 2005, 18.88% in 2006, 30.25% in 2007, 33.02% in 2008, 15.09% in 2009 and 52.54% in 2010.

The applicant submitted a document issued by the Social Security Board on 17 August 2009 confirming that his early-retirement pension had been revoked with effect of 2 August 2002 and that after that date he had not received any payments from his retirement or disability insurance.

The applicant further submitted copies of the Social Security Board’s decisions according to which he was receiving monthly family benefit for his four children. The benefit amounted to PLN 135.96 in August 2001, PLN 469.02 in October 2001, PLN 409 in June 2002 and PLN 333.06 in October 2002. The applicant further produced a certificate issued by the Social Care Centre on 18 August 2008, according to which the applicant’s family was receiving a social care benefit between 1 May 2004 and 31 August 2007. After the latter date the social care centre did not pay the applicant any further benefits. The certificate did not specify the amount of benefit granted.