Strasbourg Observers

Imminent risk of irreparable harm: why failure to protect Russians fleeing the Putin regime would be a serious blow to the Court’s reputation

March 12, 2024

By Eszter BENKŐ, Tamás FAZEKAS and Zsolt SZEKERES

In December 2023, the European Court of Human Rights rejected two requests for interim measures under Rule 39 of the Rules of Court (hereinafter: interim measures or Rule 39) in the case of a Russian dissident, who is to be returned to the Russian Federation by Hungary.

In this post, the authors will argue that returns to Russia in the current climate are, in most cases, in breach of Article 3 of the Convention, and that the conditions for the Court to apply Rule 39 are met. Failure to do so will have severe consequences for Russians fleeing the tyranny of the Putin regime.


The applicant is a Russian man who fled Russia after the invasion of Ukraine. He strongly disagrees with Russia’s war of aggression, and left the country to escape the intensifying persecution of dissent. He regularly posts anti-war messages on his social media channels.

As he had undergone basic military training before, he is registered in the first category of reservists who are to be called upon during mobilisation. He therefore fears that, upon return, he would be drafted into the military against his will, and forced to fight in a war which he considers to be illegal and immoral. He fears that his refusal to serve in the military, taken together with his anti-war stance and anti-Putin political opinion, would lead to retribution, in violation of Article 3 of the Convention.

The applicant arrived in Hungary on 8 March 2022 with a Schengen visa. Owing to the systemic deficiencies of the Hungarian asylum system, he could not submit an application for international protection. After the expiration of his visa, he would have run the risk of being summarily expelled (pushed out) to Serbia, even though he had never been to that country before – just like the applicants in the case of S.S. and Others v. Hungary. As he had no other way to legalise his stay in Hungary, the applicant, with the help of the HHC, requested to be summoned by the immigration authority as a person overstaying the validity of his visa. The main purpose of such a procedure is to expel illegally staying persons from the territory of the EU. However, the authorities must also assess whether such an expulsion would violate the principle of non-refoulement.

In this procedure, the applicant was interviewed and he explained his reasons for fleeing Russia, and submitted his military booklet. His representative submitted country information about Russia, substantiating the applicant’s fear of inhuman treatment upon return. Nevertheless, in its decision, the immigration authority found that expelling the applicant to Russia would not be in breach of the principle of non-refoulement and thus ordered him to leave the European Union. The immigration office held that Russia is generally not a dangerous place, and while it acknowledged that a risk of political oppression existed, it held that it only affected people with a visible public profile. Citing the Russian Government, the immigration authority found that mobilisation ended, and that the applicant was not running the risk of being recruited if returned to Russia.

The applicant then requested a judicial review of the authority’s decision from the Metropolitan Court of Budapest. The Budapest Court rejected the appeal without hearing the applicant and upheld the authority’s decision. The judgment did not question that, upon his return, the applicant could be drafted into the army and if he refuses to fight, he would be punished by the authorities. However, the Budapest Court claimed that there is no United Nations declaration qualifying the Russian aggression as contrary to the ‘basic human code of conduct’ and, therefore, any punishment which the applicant might face for his political opinion could not amount to persecution. The Budapest Court also found that the prison conditions in Russia are indeed dire, but according to a 2020 Act, prisoners can request reparation from the Russian state for suffering such conditions, and this reparation constitutes a sufficient internal protection alternative (sic!) from the torture and inhuman treatment the applicant would suffer. In finding so, the Court relied on the Strasbourg Court’s judgment in the case of Shmelev.

Under Hungarian law, the applicant had no further domestic legal remedy against the decision, which became final in November 2023.

The applicant was then summoned by the immigration authority to appear in person on 30 November 2023 with a view to finalising the logistical details of his expulsion order. As he did not leave voluntarily, the immigration office issued an order for deportation.

The request for an interim measure and the decisions of the Strasbourg Court

Seeking to prevent the applicant’s deportation to Russia, the HHC requested interim measures on 28 November 2023. The first request was centred around the risk of being detained owing to his political opinion and for attempting to evade conscription, and the fact that the applicant would eventually be forced to take part in the war against Ukraine and potentially to commit war crimes.

In this request, the applicant argued that according to, among others, a UN reportthe Independent International Commission of Inquiry on Ukraine has concluded: war crimes have been committed in Ukraine’ by the Russian military.

Therefore, the applicant stated that as an officer of the army of the Russian Federation, he will be forced to participate in an illegal war already resulting in documented crimes against humanity. It would be reasonable to assume that this pattern will not stop, and more violations of international law will be committed. Alternative service was only possible in theory, while in practice mobilisation is more widespread than reported, and reliable sources account for severe consequences for those who attempt to evade conscription. The applicant further relied on reports by independent media outlets and the European Union Agency for Asylum (EUAA) which accounted for a brutal crackdown on dissidents, including torture in detention.

Moreover, the applicant underlined that he was summoned by the immigration authority with a view to finalising the logistical details of his expulsion order. He also argued that a deportation order would be issued, as he did not and would not voluntarily leave the European Union.

On 29 November 2023, the Strasbourg Court rejected the interim measure request. In its decision – which lacked the signature of the duty judge – the Court laconically stated only that it ‘will not prevent the applicant’s removal’.

The HHC decided to re-write the request. On 11 December 2023, the applicant asked for another interim measure, relying on more detailed facts. He attached his deportation order to Russia, issued by the immigration authority on 30 November 2023. The execution of the order was suspended only due to the necessary preparations. The applicant also submitted a detailed opinion from a well-known Russia expert to the Court, who held that

while whether [the applicant] would be forced to join the Russian army cannot be predicted with certainty, the combined facts that he belongs to the ‘A’ category of reservists, has a technical-engineering background and has the rank of a reservist officer makes the risk of him getting mobilised or getting forced to sign up for contract service much higher than the risk any Russian man without his qualifications would face.

The opinion explicitly mentions that engineers and people with technical backgrounds, such as the applicant, are particularly sought after by the Russian military. Several regional military recruitment officers have published the qualification priorities, and engineers are frequently mentioned – and also the applicant’s home region.

The request also contains detailed information on the staggering Russian losses in Ukraine, the many accounts of war crimes committed by the Russian forces, and the treatment of conscious objectors – including actions amounting to torture and inhuman or degrading treatment. Information on arbitrary arrests of political dissidents and their treatment by the Police is also extensively referred to, and substantiated by sources such as the EUAA, the foreign services of several democratic countries and independent Russian media outlets, such as Meduza and the Moscow Times.

On 12 December, the Court rejected the second request as well – this time citing the name of the duty judge.


In light of the above, the authors are convinced that the conditions for applying interim measures are met, especially in the second request, which included a clear-cut deportation order by the Hungarian immigration authority.

In its consistent practice, the Strasbourg Court applies interim measures when there is an imminent risk of irreparable harm. The Court recently issued a press release and updated its Practice Directions on interim measures, which appear to make the process more transparent and adversarial. In the case at hand, however, the Court missed an opportunity (and, arguably, its obligation) to protect the applicant from a very substantial risk of irreparable harm in Russia, as well as to clearly and understandably communicate about the case both to the applicant and the respondent Government.

The Court consistently held that the human rights situation in Russia is not such that any removal to that State would constitute a violation of Article 3 of the Convention (most recently: U. v. France). While several such cases dealt with applicants of Chechen origin, this principle remains applicable to Russia as a whole, which cannot be maintained in view of the fast-declining human rights situation in that State, certainly not for situations like that of the applicant in this case. Political dissidents face an ever-increasing crackdown. The situation of draft evaders and conscious objectors is also dire. The applicant argued that he is openly opposed to the war, and that his profile would make him highly sought by the Russian army. He would most likely be deployed to Ukraine, in inhuman and life-threatening conditions – possibly even forced to commit war crimes. It can be deduced from the Court’s interim measures applied in the case of the prisoners of war in the ‘People’s Republic of Donetsk’ that torture and the death penalty are a daily reality in the ‘meat grinder’ of the frontline (Oliynichenko v. Russia and Ukraine, 31258/22, Pinner v. Russia, 31217/22, Aslin v. Russia, 31233/22, Saadoune v. Russia, 28944/22).

To the best of the authors’ knowledge, the Court had not before had the chance to deal with an alleged violation of Article 3 owing to the return of a political dissident conscious objector to Russia after its invasion of Ukraine in 2022. As it is common knowledge, Russia was expelled from the Council of Europe, and is not bound by the Convention as of 16 September 2022 – a situation which former Strasbourg Court Judge Dedov described as bearing the fear that arbitrariness will again become commonplace.

It is surprising and disappointing that the Court would flat out reject a request for interim measures twice in such a case, especially in light of the plight of a considerable number of Russians who still subscribe to the values of the Convention and dare to oppose a regime which resorts even to murdering its inner political opposition.

Given the Court’s above-cited intent to make Rule 39 proceedings more transparent, rejecting the request without even raising some questions to the respondent Government and halting the deportation process while a fast exchange of views between the Government and the applicant is pending is deeply worrying.

Setting aside the procedural doubts, the authors wonder as to what else the applicant should have substantiated to be granted protection from return to Russia. The real risk of him being detained for his political views and tortured while in detention, and / or being forced to fight in an illegal war of aggression where the treatment of conscripts is proven to be deplorable, and where they are forced to (and free to) commit crimes against humanity was well established and substantiated by credible sources. These risks are imminent (especially when deportation takes place by air, just like in the case of the applicant), and – by their nature – irreparable.

The Court’s refusal to stop the applicant’s return to Russia was even more staggering considering that he was never allowed to apply for asylum. While Hungary did carry out a non-refoulement examination, the immigration authority showed an uncanny partiality to the Russian Government in their decision, and the Budapest Court failed to grasp and properly apply the most basic concepts of international human rights law. Even if the material argument could not merit the application of Rule 39, at least the obvious procedural shortcomings should have necessitated a few questions.

When refusing to protect the applicant from being returned to Russia, the Strasbourg Court missed a possibility to take a clear and principled stance on this important issue. The Russian Government may have turned away from the Convention, but not all Russians did; those who defy the Putin regime and oppose the war on Ukraine risk paying an extremely high price. In this scenario, the Court should not be a bystander.

Concluding remarks

We are certain that similar cases will reach the Court soon, and the Hungarian Helsinki Committee is confident that the Court will recognise the importance of preventing returns from Council of Europe member states to Russia. Should it fail to do so, it would risk a serious blow to its reputation, which, especially in light of Russia’s track record with the Convention and the Court, would be immensely concerning.

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