Published: 9 Apr 2019 | By Emily Campbell
Navalnyy v Russia (No. 2)
Case No.: 43734/14
Judgment date: 9 April 2019
The applicant, Aleksey Navalnyy, is an anti-corruption campaigner and opposition political activist in Russia. In December 2012, he and his brother were accused of fraud and money laundering in relation to two companies. The applicant was placed under house arrest in February 2014. Whilst under house arrest, he was electronically tagged and a number of restrictive measures were imposed on him. He was initially prevented from leaving the house without authorisation, communicating with anyone except immediate family and his lawyers, receiving or sending correspondence, using the internet or any other means of communication, and talking to the media about his case. The conditions were subsequently amended to prohibit him only from communicating with witnesses and from communicating by radio and television. His house arrest was repeatedly extended.
In December 2014, the applicant and his brother were convicted of the alleged crimes. The applicant was given a suspended sentence of three and a half years in jail and a fine (quashed on appeal). The court ordered that he should remain under house arrest.
The applicant complained that his ten- month house arrest was unlawful and arbitrary, in breach of his right to liberty (Art. 5(1), (3) and (4) ECHR), was aimed at preventing his public and political activities (Art. 10 ECHR) and was politically motivated, to silence him and keep him out of the public eye (Art. 18 ECHR).
The Court held that the applicant’s house arrest constituted a deprivation of liberty, was unlawful and violated Art. 5(1) ECHR. The order could not be justified under any of the permissible grounds under Art. 5, particularly because there was no risk that the applicant would abscond or otherwise hamper the investigation against him. The Court also found a violation of Art. 10 ECHR as the restrictions on the applicant’s freedom of expression was not in accordance with the law and did not pursue any of the legitimate aims under Art. 10(2). The Court noted that the formal reason for the applicant’s house arrest was the risk of absconding. However, the house arrest restriction preventing him from using radio or television as a means of communication was unconnected with the needs of the criminal investigation and would not secure his appearance before an investigator or at trial.
The Court reaffirmed its findings in Navalnyy v Russia (No. 29580/12, 15.11.18) that the applicant had been targeted as a political activist. Relying on the predominant purpose test (Merabishvili v Georgia [GC], No. 72508/13, 28.11.17), it held that the house arrest served an aim other than that stipulated by the domestic courts, namely to suppress political pluralism in breach of Art. 18 in conjunction with Art. 5 ECHR. Russia was ordered to pay the applicant €20,000 in non-pecuniary damages.
The Court’s finding that Russia had pursued “an ulterior purpose” to suppress political pluralism sends a powerful message that comes at a tense time in Russia’s relationship with the Council of Europe. This is the second time that the ECHR has found a violation of Art. 18 in the applicant’s case. In November 2018, the Court ruled that Navalnyy’s multiple arrests and periods of detention formed part of a movement “to bring the opposition under control” (para. 173a).
Any finding that a State has acted in bad faith is politically sensitive. The Court has now found States to have violated Art. 18 in 13 cases (against Azerbaijan (five), Georgia (one), Moldova (one), Russia (three), Turkey (one) and Ukraine (two)), of which Navalnyy (No. 2) v Russia was the twelfth. In the thirteenth case (Selahattin Demirtaş v Turkey (no. 2), decided a few days later, the Court ruled that the applicant’s detention served to stifle political debate. Taken together, these judgments indicate that the Court is prepared to rule on politically-sensitive matters with a view to upholding democracy and the rule of law.