Karinna Moskalenko on the Navalny case: A state must never openly violate rights guaranteed by the Convention, disregarding international standards
Karina Moskalenko. Photo: Anna Artemeva / Novaya Gazeta

17 February 2021

Source: Moscow Helsinki Group [original source: Радио Свобода]

The European Court of Human Rights has demanded that Russia immediately release Aleksei Navalny as part of interim measures for his appeal. A copy of the document was published on the opposition politician’s website.

According to court rules, it can – in exceptional circumstances – take interim measures that are binding. This is done in cases where the court concludes that failure to take action exposes the applicant to real risk.

Associates of Aleksei Navalny and members of his team note that this requirement is mandatory for the Russian Federation. “Navalny should be released immediately from custody. There is a clear order from the European Court that authorities are obliged to comply with”, Olga Mikhailova, the politician’s lawyer, told Novaya Gazeta.

Ivan Zhdanov, director of the Anti-Corruption Foundation, wrote on the Telegram channel that Russia has no choice. It must comply with the decision: “Let me explain: Rule 39 of the European Court of Human Rights Rules is an emergency mechanism, used when the European Court considers that a country needs to take urgent measures that concern human life and health before the main trial takes place. This rule is applied extremely rarely, and absolutely all countries comply with it. Most often it concerns refugees whom the country is trying to expel but who are in danger in their homeland, or if a person held in a pre-trial detention centre is unwell and is not provided with medical assistance. So here, the European Court has applied this rule to Aleksei Navalny and has ordered his immediate release. There is no option for Russia to not comply with this ruling; even Turkey complies with such rulings. Russia has always complied with such rulings, and will do so now.”

However, Karina Moskalenko, lawyer, member of the Moscow Helsinki Group, and founder of the International Protection Centre, said in an interview with Radio Svoboda that in the past, there have been delays in the implementation of such requirements by the Russian Federation.

I can say that back in January that Mikhailova, a member of our team, filed an appeal to the European Court with a request to apply Rule 39 when she saw that there was a threat to the health and life of her client Aleksei Navalny. Rule 39 is applied as an interim measure and is extremely rare. It is only used in cases where the court is convinced by the parties or the party. Before doing this, the Court collects all the information. If the Court is convinced that a person’s life or health is at risk it can apply this measure and it is absolutely binding. Further decisions in the case related to the administration of justice are not affected by the Court at all. They propose that the State complies with the mandatory measure which ensures the health and life of an individual and that it releases the individual from custody.  

Everything that follows will be decided by the Russian authorities. If, following the decision of the Russian authorities, the fundamental rights guaranteed to everyone, including Navalny, are affected negatively, then this decision will be assessed against the European Convention. And it is only this that is the prerogative of the European Court. As such, in this case, the European Court does not interfere in the jurisdiction of the Russian Federation because the judicial authorities assess any cases in their own way. This is the administration of justice at the national level. At the international level cases are resolved only in terms of the violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This document is mandatory for Russia and a decision of this kind by the European Court is binding.  

Does Rule 39 apply to the sentence starting on the 20th February if the court rejects the appeal of Navalny’s lawyers against the decision in the Yves Rocher case? 

The Russian Federation can take any action via a court ruling. Navalny’s defence can appeal this decision and attempt to prove that the Convention has been violated in his case. In this case, it is not the court’s decision that is subject to scrutiny, but the rights guaranteed by the European Convention, in this instance, the right to life and safety. This is embodied in Articles 2 and 3 of the European Convention which are binding in the Russian Federation. 

Are there any precedents in the history of the European Court of Human Rights where a country has failed to comply with this requirement under Article 39?

No country has failed to comply with this requirement. In any case, Russia did not neglect this requirement. In my opinion, Turkey had problems with this rule in the Ocalan case, but in general, no one allows themselves not to comply with the requirements of Rule 39 of the Rules of Court. In any case, Russia has always fulfilled these requirements. There were hiccups in two cases I know of, but these are just hiccups. At least, there has never been a refusal to comply with these requirements. These are still supranational issues. There is the jurisdiction of the Court, and this is a domestic issue. But a state must never openly violate rights guaranteed by the Convention, disregarding international standards. And if this is a violation not related to a person’s life, then these issues are tolerated until the final decision of the European Court of Human Rights, and this takes some time. The Rule 39 applies only in cases that are urgent.

Have there been cases in which Rule 39 has been applied to a person who is already serving a sentence by a court decision and has exhausted all methods of protection at the national level?

I recall the case of Vasily Aleksanyan, a fellow lawyer who participated with us in the defence of Mikhail Khodorkovsky, and in his case Rule 39 was applied. Those were the hiccups I’m talking about. But in the end, of course, he was released, and the requirement under Rule 39 was met by the Russian authorities,  says Karinna Moskalenko.

The head of the international human rights group Agora Pavel Chikov is more pessimistic about the prospects. Chikov wrote in his telegram channel:

Today it became known that the European Court of Human Rights applied Rule 39 of the Rules of Court and demanded that the Russian authorities immediately release Aleksei Navalny. For the first time, the ECtHR requires a release in the framework of interim measures, and not in a final decision.

The interim measures of the European Court of Human Rights are mandatory, this is its constant practice since 2005. Russia implemented many such measures but many more were not implemented, like extraditing applicants to Central Asian countries where they risked torture.

In Turkey, for example, the politicians and activists Osman Kavala and Selahattin Demirtas are currently imprisoned who should have been released. In turn, in Azerbeijan, Ilgar Mammadov has been released for a year and a half.

We suppose that the demand from immediate release stems from the fact that there was evidently an attempt on Navalny’s life, with reasonable suspicion of the involvement of special services officials. To leave the politician under the control of the State, with the total absence of any sort of investigation into the poisoning incident, is to put him in a situation that endangers his life and his health.

Strictly speaking, there remains a risk to Navalny’s life and health even while out of prison in Russia. But the ECtHR cannot demand that he be sent abroad, though the Russian authorities may want this.

In this instance, the refusal to release Navalny would be a violation of Russia’s obligations under the European Convention, but it should rather be expected of the authorities that they would drag their feet and naval gaze in the process.

However, the Russian Ministry of Justice announced yesterday that it had no plans to comply with this requirement. And on Wednesday, Russian Justice Minister Konstantin Chuichenko called the ECtHR’s demands for Russia “a gross interference in the activities of the courts.” The Russian State Duma also pointed out the amendments to the Constitution of the Russian Federation, according to which Russian authorities can refuse to comply with such international legal regulations. This was according to Petr Tolstoi, the deputy speaker of the State Duma, who had not yet seen the decision of the ECtHR.

In February, a Moscow court decided to send Navalny to a penal colony for two years and eight months for a fraud sentence passed in 2014. In 2017, the European Court of Human Rights ruled that the so-called Yves Rocher case, in which the opposition leader was convicted, violated Navalny’s right to a fair trial and he was paid compensation. But the Supreme Court of Russia recognised the verdict as legal and refused to change it.

A spokesperson for the Russian Ministry of Justice’s press service told the TASS new agency that the Ministry considers the decision for immediate release to be “an unreasonable and gross interference in the work of the judicial system of a sovereign state.”

The Ministry said that such a decision cannot be enforced, saying that it “crossed a red line.”

In early February, the Committee of Ministers of the Council of Europe considered Navalny’s complaint about Moscow’s failure to comply with the decisions of the European Court. Navalny’s representatives told the Committee of Ministers on his behalf that Russian authorities did not want to “even pretend” that they were complying with the ECtHR’s decisions.

If the Committee of Ministers finds Navalny’s application justified, this may become the subject of another investigation in the same court, and Russia’s rights in the Council of Europe could be suspended.

  • The court ruling sending Navalny to a penal colony has not yet entered into force. The lawyers’ application to the European Court was made before the court’s ruling was handed down.

Translated by Nathalie Corbett, Ecaterina Hughes and Verity Hemp

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