The Death of Navalny and the European Court of Human Rights

19-02-2024

Burak Tahsin Bahce

International Justice and Human Rights Intern

Global Human Rights Defence

On 16 February 2024, the Russian authorities reported the death of Aleksei Navalny, the globally well-known opposition leader who had been imprisoned since his return from Germany in 2021. While the cause of his death in prison remains unclear, it has been widely reflected in the European and international community. On the other hand, throughout his story in the last decade, the European Court of Human Rights delivered several findings of violations and granted an interim measure concerning his ongoing detention.

With regard to his arrests seven times between 2012 and 2014 at various public gatherings, the Grand Chamber of the Court has held that there has been a violation of Article 5 (right to liberty and security) and Article 11 (right to freedom of assembly and association) of the ECHR. The Court further examined the complaint under Article 18, which finds a relatively limited place in its case law and prohibits restriction on rights for any purposes other than those prescribed under the Convention. It applied a strict test set out in its Merabishvili v. Georgia judgment, and concluded that the “ulterior purpose” of his arrests and the interference with his right to peaceful assembly pursued to “suppress political pluralism, a hallmark of effective political democracy governed by the rule of law” and, therefore, found a violation of this article. [1]

The second remarkable case of Navalny concerned his alleged poisoning. In 2020, while on a flight from Germany to Moscow, Navalny suddenly fell and lost consciousness. After an emergency landing and being taken into a coma, several tests and forensic examinations were carried out both in Germany and Russia. German authorities announced that the examination by several independent laboratories has revealed that he had been poisoned with a chemical nerve agent from the Novichok group of substances prohibited under the Chemical Weapons Convention. However, the Russian authorities reached the opposite conclusion and refused his request with a pre-investigation decision, to open a criminal investigation into his attempted murder by poisoning. The Court found, upon his complaint, that the Russian Federation had violated his right under Article 2 of the Convention (right to life) based on its failure to conduct an effective investigation on these serious allegations and multiple calls by the international bodies. [2]

After the incident of the alleged poisoning, Navalny arrived in Russia and was swiftly arrested on charges including fraud which has been claimed as politically motivated. He lodged an individual complaint before the Court about his deprivation of his liberty and related health concerns while in prison, and requested the Court to apply interim measures. While the case was pending, the Court addressed several questions to the Russian Government about Navalny`s detention conditions and the safeguards to protect his life and well-being. Upon the Government's response, on 16 February 2021, the Court asked the Russian Government to immediately release him on the grounds of “the nature and extent of risk to his life, demonstrated prima facie for the purposes of applying the interim measure, and seen in the light of the overall circumstances of his detention”. [3] Despite multiple calls by the Council of Europe and European Union authorities, the Russian Government did not comply with this interim measure and continued to hold him in prison. [4]

During this continuing detention, on 16 February 2024, the Russian authorities reported that Navalny felt unwell after a walk and almost immediately lost consciousness. They said they were investigating his sudden death, however, claimed that he died of natural causes. [5] In any case, his detention was contrary to the Court's decision on interim measures, and the Russian Federation had to release him regardless of its exclusion or withdrawal from the Council of Europe, as its binding obligation continues for the cases lodged before that date. [6]

Notes:

[1] Navalnyy v Russia [GC], App nos 29580/12, 36847/12, 11252/13 et al (ECHR, 15 November 2018).

[2] Navalnyy v Russia (No 3), App no 36418/20 (ECHR, 06 June 2023).

[3] The Court grants an interim measure in favour of Aleksey Navalnyy and asks the Government of Russia to release him (ECHR 063 (2021), the Registrar of the European Court of Human Rights, 17 February 2021).

[4] European Parliament(2021/2513(RSP)), Joint Motion For a Resolution on the Arrest of Aleksei Navalny, 20 January 2021; ‘“As simple as it is appalling.” The Navalny debate highlights’ (European Stability Initiative |ESI) <www.esiweb.org/publications/simple-it-appalling-navalny-debate-highlights> accessed 19 February 2024.

[5]‘Jailed Russian opposition figure Alexey Navalny dies, prison service says’ (CNN) <https://edition.cnn.com/2024/02/16/europe/alexey-navalny-dead-russia-prison-intl/index.html> accessed 19 February 2024; `Russian activist and Putin Critic Alexei Navalny dies in Prison´ <www.theguardian.com/world/2024/feb/16/russian-activist-and-putin-critic-alexei-navalny-dies-in-prison> accessed 19 February 2024.

[6] ECHR, Art 58; ECHR, `Resolution on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights´, 22 March 2022.