Tag: speech

Russian Opposition Leader Navalny Vindicated Again (ECtHR)

On 9 April 2019, the European Court of Human Rights ruled unanimously, in the case of Navalny v Russia (No. 2) (App. no. 43734/14), that Russia violated Navalny’s right not to be arbitrarily detained under Article 5, his freedom of expression under Article 10 while at the same time acting contrary to Article 18 of the European Convention on Human Rights. The judgment comes after the European Court of Human Rights vindicated Navalny in Navalny v Russia (App. no.: 29580/12) in November 2018.

The November 2018 ruling in in Navalny v Russia (App. no.: 29580/12) concerned Navalny’s complaint against the Russian government claiming a political persecution through different methods and over an extensive period of time. In respect of Article 5, Navalny complained about having been arbitrarily arrested on seven occasions while attending peaceful demonstrations, including twice for an alleged failure to obey a police order (on 9 May 2012 and 24 February 2014) and about having been detained for over three hours in violation of the statutory time-limit pending his trial (paras. 68-9). In respect of Article 6, Navalny argued that on all seven occasions when he was arrested, he was unfairly convicted of an administrative offence in violation of his right to a fair hearing, including the right to the equality of arms, presumption of innocence, impartiality of the tribunal and the adversarial nature of the proceedings (para. 73). In respect of Article 11, Navalny claimed that arresting him seven times while attending peaceful demonstrations had violated his freedom of peaceful assembly (para. 85). In November 2018, the European Court of Human Rights agreed with most of Navalny’s claim (discussed by The Jurist’s Corner at length here).

The April 2019 ruling concerns Navalny’s house arrest which was ordered by a Russian domestic Court pending Navalny’s criminal trial for an alleged fraud and money laundering. Navalny lodged a complaint with the European Court of Human Rights claiming that the decision to place him under house arrest, together with a further ban on communication with anyone other than his close family, was designed to prevent him from pursuing his public and political activities as an opposition leader therefore violating his rights under Articles 5 and 10 of the European Convention on Human Rights. Navalny also claimed, similarly as in his previous case, that the actions of the Russian government were contrary to Article 18 of the Convention which prescribes that “the restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” In response, the Russian government argued that the decision to place Navalny under house arrest was made due to his non-compliance with a previous preventive measure not to leave Moscow during the investigation.

In relation to an arbitrary deprivation of liberty contrary to Article 5 of the European Convention on Human Rights, the European Court of Human Rights first acknowledged that subjecting Navalny to a house arrest over the period of 10 months amounted to a deprivation of liberty (para 59). The Court then analysed Navaly’s history of complying with previous preventive measures and found that there was no evidence of any non-compliance which led the Court to hold that there was no credible risk of absconding. Ultimately, the Court ruled that “the domestic courts had no criminal-process reasons which called for the undertaking to be converted into house arrest. The house arrest was therefore ordered against the applicant unlawfully.” (para 63). On the subject of Article 10 of the Convention, the Court first acknowledged that the ban on “(i) leaving his flat, (ii) communicating with anyone apart from his immediate family, (iii) using means of communication and the Internet, and (iv) making statements, declarations, or addresses to the public or commenting on the criminal case to the media” (para 74), which was attached to the house arrest order, amounted to an interference with Navalny’s freedom of expression under Article 10 of the Convention. Then, the Court held that most of the ban was unlawful under Russian domestic law, which had been admitted by a domestic Court (paras 76-77). Ultimately, the Court held that the ban was “applied without any apparent connection with the requirements of the criminal investigation. The ban on the applicant’s access to means of communication in the house-arrest order did not serve the purpose of securing his appearance before the investigator or at his trial, and, as with the decision to place him under house arrest, had no connection with the objectives of criminal justice.” (para 80).

Similarly as in his previous case before the European Court of Human Rights, Navalny argued, beside his substantive claim under Articles 5 and 10 of the European Convention on Human Rights, that Russia also violated Article 18 of the Convention. In the November 2018 ruling, the judges voted 14-3 in favour of finding a violation of Article 18. In the April 2019 ruling, the Court was unanimous:

93. The Court has found above that the applicant’s detention under house arrest was ordered unlawfully, and that the ban on his access to means of communication did not pursue a legitimate aim (see paragraphs 63 and 81 above). In view of those conclusions, the Court may dispense with an assessment of the issue of plurality of purposes in respect of those measures and focus on the question whether, in the absence of a legitimate purpose, there was an identifiable ulterior one (see Navalnyy, cited above, § 166).

94. The request to have the undertaking not to leave Moscow replaced with house arrest was lodged on 26 February 2014, immediately following the applicant’s two arrests on 24 February 2014 for taking part in unauthorised public gatherings; both arrests were found by the Court to be in breach of Articles 5 and 11 of the Convention, and one of them also in breach of Article 18 (see Navalnyy, cited above, §§ 71-72, 125-26, 138, 146 and 175). Moreover, the Court noted the pattern of the applicant’s arrests and found that the grounds given for his deprivation of liberty had become progressively more implausible (see Navalnyy, cited above, §§ 167-68). It accepted the allegation that he had been specifically and personally targeted as a known activist (ibid., § 170). His deprivation of liberty in the present case must be seen in the context of that sequence of events.

95. The Court observes next that the applicant’s house arrest, together with the restrictions on his freedom of expression, lasted for over ten months. This duration appears inappropriate to the nature of the criminal charges at stake; in particular, no such measures were applied to the applicant’s brother, who was the main accused in the fraud case. The restrictions imposed on the applicant, especially the communication ban, which even the domestic courts considered unlawful (see paragraph 77 above), became increasingly incongruous over the course of that period, as their lack of connection with the objectives of criminal justice became increasingly apparent (see paragraph 80 above).

96. In Navalnyy, cited above, in its discussion of Article 18 of the Convention in connection with Articles 5 and 11, the Court relied on the converging contextual evidence that at the material time the authorities were becoming increasingly severe in their response to the conduct of the applicant and other political activists and, more generally, to their approach to public assemblies of a political nature (ibid., § 172). It also referred to the broader context of the Russian authorities’ attempts to bring the opposition’s political activity under control (ibid., § 173) and noted the applicant’s role as an opposition politician playing an important public function through democratic discourse (ibid., § 174).

97. The Court considers that the evidence relied on in Navalnyy is equally pertinent to the present case and is capable of corroborating the applicant’s allegations that his placement under house arrest with restrictions on communication, correspondence and use of the Internet pursued the aim of curtailing his public activity, including organising and attending public events.

98. In view of the above, the Court considers that the restrictions on the applicant’s right to liberty in the present case pursued the same aim as in Navalnyy, namely to suppress political pluralism. This constituted an ulterior purpose within the meaning of Article 18, which moreover attained significant gravity (ibid., § 174).

99. There has accordingly been a violation of Article 18 taken in conjunction with Article 5 of the Convention.”

A violation of Article 18 of the European Convention on Human Rights necessarily implies an element of bad faith on the part of a state. Very rarely does a violation of a substantive right (such as the right not to be arbitrarily detained under Article 5 or the freedom of expression under Article 10 of the Convention) entail a violation of Article 18 of the Convention. Most cases before the European Court of Human Rights in which applicants are successful concern situations where states acted in good faith but nevertheless violated some Convention rights. But a violation of Article 18 means that the motives of the Russian government, when dealing with Navalny, where malicious. This conclusion is only reinforced by the fact that the ruling on Article 18 was unanimous.

Comparisons to Nazi outside ECHR Free Speech Protection (ECtHR)

On 18 October 2018, the European Court of Human Rights ruled in the case of Annen v. Germany (No. 6) (App. No.: 3779/11) that Article 10 of the European Convention on Human Rights did not protect statements comparing doctors conducting stem-cell research to Nazi experiments. The Claimant was originally convicted before a German court for the crime of ‘insult’ contrary to Article 185 of the German Criminal Code and the case was brought before the European Court of Human Rights on the grounds that the comparison had been made in the context of a larger public debate and was therefore covered by the freedom of speech.

The Claimant argued that the conviction constituted a disproportional interference under Article 10 of the Convention. The state on the other hand argued that the conviction was necessary for the purposes of the “protection of the reputation or rights of others”, which is an allowable exception to the Article 10 rights. Ultimately, the Court held that the conviction fell within the margin of appreciation granted to Germany. It was also emphasised that “regardless of the forcefulness of political struggles, it is legitimate to try to ensure a minimum degree of moderation and propriety and that a clear distinction must be made between criticism and insult.” (para. 24).

With this case, the European Court of Human Rights maintains its limited approach to the Article 10 protection whereby, unlike under the First Amendment to the US Constitution, the freedom of speech does not cover offensive statements, even if made on a topic of public importance (e.g. Handyside v UK (App. No.: 5493/72), Otto-Preminger-Institut v Austria (App. No.: 13470/87), Vejdeland v Sweden (App. No.: 1813/07), etc.).