On 16 February 2021, the European Court of Human Rights (ECtHR) granted further interim measures against Russia in relation to political opposition figure Alexei Navalny, requiring that Navalny be immediately released from prison due to the risk to his life and health.
Background
This is not the first time that the Court has granted Navalny’s request for interim measures against Russia. In August 2020, Navalny was the victim of a chemical poisoning whilst on a domestic flight, and the Court ordered Russia to deliver up information about his medical treatment in Russia and to grant access to the patient to assess his fitness for transport (see here for our previous post on this). Navalny was subsequently transferred to hospital in Germany, where he recovered, and where the poison was confirmed to be the Russian nerve agent Novichok.
The Russian state has not accepted responsibility for the poisoning, even though Navalny himself released recordings in December of a telephone call with one of the FSB operatives allegedly involved in the poisoning, who discussed details of the operation (thinking that Navalny was a senior member of the FSB).
In mid January 2021, Navalny returned to Russia. Immediately on arrival at the airport, he was arrested and detained. His sentence has now been confirmed for 2 years and a half year’s imprisonment, for breach of the terms of his probation over a 2014 money laundering conviction – a conviction which the ECtHR ruled in 2017 was “arbitrary and manifestly unreasonable” (Navalnyye v Russia, Application no. 101/15). According to Bloomberg, Navalny received the sentencing for failing to check in with the Russian authorities while he was in Germany in August 2020, recovering from the poisoning. His sentencing has been internationally criticised, and in Russia thousands of people joined nationwide protests over the end of January and the beginning of February.
The ECtHR’s decision
Navalny had applied to the ECtHR on 20 January 2021 for interim measures under Rule 39 of the Rules of Court.
The Court first requested information from Russia on the following questions:
- Did the risk to the applicants life persist?
- If so, what measures were being taken by the Russian authorities to safeguard his life and wellbeing, particularly while in custody?
- Were the conditions of detention and treatment of the applicant subject to regular independent monitoring in line with European standards?
Russia responded that Navalny was being held in a “properly guarded cell” which was under video surveillance, described the material conditions in the cell, said that Navalny had access to electronic communications via the prison system, was allowed to make phone calls, and had been visited on several occasions by his lawyers and by members of the Russian public monitoring commission for prisons. Navalny submitted that these arrangements could not provide sufficient safeguards for his life and health.
The ECtHR, having
regard to the nature and extent of risk to the applicant’s life, demonstrated prima facie for the purposes of applying the interim measure, and seen in the light of the overall circumstances of the applicant’s current detention,
decided to grant the interim measures requested and indicated that Russia should release Navalny immediately.
Rule 39 measures
The Court has broad powers under Rule 39 to grant interim measures, but will only do so where there is an imminent risk of irreparable harm. In detention cases, the Court has previously exercised its power under Rule 39 in order to request that a detainee be medically assessed or transferred to a hospital (see the examples discussed under ‘Health and Conditions of Detention’ in the ECtHR’s factsheet on Interim Measures). February’s ruling would appear to be the first time the Court has ordered that an applicant be released from detention entirely due to the state’s inability to protect his/her life and health.
No judgment text is currently available regarding the ECtHR’s February decision, and the court’s press release does not give any further reasoning. However, conditions of detention in Russia have long been a matter of concern. In 2018 the UN Committee against Torture published its Concluding observations on the sixth periodic report of the Russian Federation, which raised a number of concerns in relation to the Russian prison system. The Committee observed, in particular: (a) that fundamental legal safeguards, such as access to lawyers and independent medical examination, often do not apply for detained persons, (b) that there were concerns over the effectiveness and independence of the Russian public monitoring commissions, and (c) that there were numerous reliable reports of the practice of torture and ill-treatment in Russia, including as a means to extract confessions.
Next steps
Russia has so far refused to comply with the ECtHR’s instruction to release Navalny, saying that it is an over-interference with national sovereignty. On 20 February Navalny lost his appeal against the prison sentence.
So what next? The US and the EU have now imposed asset-freezing and travel ban sanctions against seven senior Russian officials and 14 entities involved in chemical and biological production. There may also be a route for the ECtHR to impose a final judgment on Russia for failure to comply with Rule 39: in a number of previous cases the ECtHR has found this to constitute a violation of Article 34 of the Convention, under which states “undertake not to hinder in any way the effective exercise” of an individual’s right to apply to the ECtHR. Navalny and his lawyers have previously brought a number of cases to the ECtHR: this is clearly part of his political as well as his legal strategy. No doubt he will pursue every avenue available.
Further references:
- Our blog post on the ECtHR’s measures against Russia following Navalny’s poisoning in August 2020.
- Law Pod UK Episode 124 where Matt Hill discusses the novichok poisoning in Salisbury and the subsequent inquest into the death of Dawn Sturgess
- This blog’s previous coverage of the ECtHR decision in relation to Yukos and the UK Inquiry into the death of Litvinenko.
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