Navalnyy v. Russia (no.2) (European Court of Human Rights)

Information Note on the Court’s case-law 228
April 2019

Navalnyy v. Russia (no.2)43734/14

Judgment 9.4.2019 [Section III]
Article 18
Restrictions for unauthorised purposes
Political activist’s house arrest with restrictions on communication, correspondence and use of Internet, aimed at suppressing pluralism: violation
Article 5
Article 5-1
Lawful arrest or detention
No criminal-process reasons for house arrest: violation
Article 10
Article 10-1

Freedom of expression

Ban on access to means of communication during house arrest without connection to requirements of criminal investigation: violation

Facts – The applicant, a political opposition figure, complained that the decision to place him under house arrest and the restrictions imposed on him during that time had been arbitrary and unnecessary and had been applied in order to prevent him from pursuing his public and political activities.

Law

Article 5: The applicant’s house arrest had been ordered primarily on the grounds that he had breached a previous preventive measure, namely an undertaking not to leave Moscow during the investigation. Throughout the fourteen months of the undertaking, the applicant had regularly appeared before the investigator and participated in procedural acts whenever required. He had taken the initiative to notify the investigator of his trips to the Moscow Region and nothing in the case file indicated an intention to flee or to otherwise hamper the progress of the investigation by making those trips. The Court could not overlook the intensity of the surveillance to which the applicant had been subjected in the period before he had been placed under house arrest. It appeared from the Government’s own submissions that the authorities had been aware of his activities in considerable detail and had kept thorough records. From the sample of the surveillance reports submitted to the Court, the impugned trips appeared to be family outings, unrelated to the criminal case in question.

There was no reasonable explanation as to why the district court, in full knowledge of those circumstances, had endorsed the view that the applicant had breached his undertaking or that his conduct had warranted a deprivation of liberty. The domestic courts had no criminal-process reasons which called for the undertaking to be converted into house arrest. The house arrest had therefore been ordered against the applicant unlawfully.

Conclusion: violation (unanimously).

Article 10: The district court had set conditions for the applicant’s house arrest. Those included banning him from communicating with anyone apart from his immediate family and lawyer, receiving or sending any correspondence, or using the Internet. He had been further banned from making statements, declarations or addresses to the public or from commenting on the criminal case to the media. The district court had subsequently amended two of the conditions, finding them to be unlawful. After removing the two unlawful restrictions, the court had imposed a new one – on the use of radio and television, which it had specified among the banned means of communication. The way the new condition had been formulated left it unclear whether the applicant had been prevented from watching television and listening to the radio, or whether he had only been restricted from appearing on air. In any event, the scope of the new restriction was even wider than the previous ban on making public comments on the criminal case because it had limited the applicant’s access to broadcast media for making statements on any subject matter.

There was no link between the restrictions on the applicant’s freedom of expression and the risks indicated by the Government. As to the risk of absconding, supposedly demonstrated by the trips to the Moscow Region, it was difficult to see how even a genuine belief that the applicant had been about to flee could be relevant to a ban on his use of radio and television as a means of communication. The applicant had been confined to his flat; he had been under strict surveillance and worn an electronic tracking device; he had not been allowed to leave his flat, even to take walks. In those circumstances it was unlikely that an opportunity to issue a public statement via radio or television would have facilitated absconding. As to the possibility of the applicant using a public statement to influence witnesses or otherwise obstruct the investigation, it had been referred to in the abstract and its relation with the use of radio and television remained equally tenuous.

The restrictions had been applied without any apparent connection to the requirements of the criminal investigation. The ban on the applicant’s access to means of communication in the house-arrest order had not served 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 had no connection to the objectives of criminal justice.

Conclusion: violation (unanimously).

Article 18 taken in conjunction with Article 5: The applicant’s complaint under Article 18 represented a fundamental aspect of the case which had not been addressed and which merited a separate examination.

The Court had found that the applicant’s detention under house arrest had been ordered unlawfully in breach of Article 5, and that the ban on his access to means of communication had not pursued a legitimate aim in breach of Article 10. In view of those conclusions, the Court could 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 had been an identifiable ulterior one.

The request to have the undertaking not to leave Moscow replaced with house arrest had been lodged immediately following the applicant’s two arrests for taking part in unauthorised public gatherings. Both those arrests had been found by the Court to be in breach of Articles 5 and 11, and one of them also in breach of Article 18 (see Navalnyy v. Russia [GC], 29580/12 et al., 15 November 2018, Information Note 223). In that case the Court had noted the pattern of the applicant’s arrests and had found that the grounds given for his deprivation of liberty had become progressively more implausible. It had accepted the allegation that he had been specifically and personally targeted as a known activist. His deprivation of liberty in the current case had to be seen in the context of that sequence of events.

The applicant’s house arrest, together with the restrictions on his freedom of expression, had lasted for over ten months. That duration appeared inappropriate to the nature of the criminal charges at stake. The restrictions imposed on the applicant, especially the communication ban, which even the domestic courts had considered unlawful, had become increasingly incongruous over the course of that period, as their lack of connection with the objectives of criminal justice had become increasingly apparent.

In its discussion of Article 18 in connection with Articles 5 and 11 in Navalnyy [GC], the Court had relied on the converging contextual evidence that at the material time the authorities had been 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. It had also referred to the broader context of the Russian authorities’ attempts to bring the opposition’s political activity under control and noted that the applicant’s role as an opposition politician had played an important public function through democratic discourse.

The evidence relied on in Navalnyy [GC] was equally pertinent to the case in issue and was capable of corroborating the applicant’s allegations that his placement under house arrest with restrictions on communication, correspondence and use of the Internet had pursued the aim of curtailing his public activity, including organising and attending public events. The restrictions on his right to liberty in the case had pursued the same aim as in Navalnyy [GC], namely to suppress political pluralism. That constituted an ulterior purpose within the meaning of Article 18, of significant gravity.

Conclusion: violation (unanimously).

Article 41: EUR 20,000 in respect of non-pecuniary damage.

(See also Merabishvili v. Georgia [GC], 72508/13, 28 November 2017, Information Note 212)

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