Information Note on the Court’s case-law 254
August-September 2021
Carter v. Russia - 20914/07
Judgment 21.9.2021 [Section III]
Article 2
Article 2-1
Life
Effective investigation
Targeted killing of a Russian political defector and dissident perpetrated in the United Kingdom by individuals acting as State agents and lack of effective investigation: violations
Facts – The applicant is the widow of Mr Aleksandr Valterovich Litvinenko. Mr Litvinenko previously worked in the USSR Committee for State Security (KGB) and its successor agencies, including the Federal Security Service (FSB). He fled from Russia after going public with allegations that he had been asked to carry out unlawful operations, including to examine the possibility of assassinating a wealthy businessman, and was granted asylum along with his family in the United Kingdom. There, he carried out a number of activities, mainly focused on exposing corruption in Russian intelligence services and their links with organised crime.
In November 2006, Mr Litvinenko became ill and was hospitalised. He later died. The cause of death was established to be acute radiation syndrome, caused by very high levels of polonium 210, which had entered his body through ingestion. Mr Litvinenko had previously been visited three times by a long-standing acquaintance, Mr Lugovoy, and Mr Kovtun, who had flown from Moscow to London. On each occasion, polonium contamination was found in areas where the pair had visited.
In Russia, the Prosecutor General launched a domestic criminal investigation in 2006. In the UK, a police investigation was opened: both Mr Lugovoy and, later, Mr Kovtun, were charged with, and remain wanted for, the murder. An inquest and public inquiry were also carried out and in 2016 the inquiry found it established, beyond reasonable doubt, that Mr Litvinenko had been poisoned by polonium administrated by Lugovoy and Mr Kovtun, acting under FSB direction.
Law – Article 2
(a) Admissibility of the Litvinenko Inquiry report – The respondent Government had contested the admissibility of the Litvinenko Inquiry report produced by the UK Government. After examination, the Court found that there was no reason to doubt the quality of the domestic investigative process, or the independence, fairness and transparency of the inquiry proceeding. It therefore considered that it could not disregard the findings of the inquiry solely because the authorities of the respondent State had abstained from exercising their right to participate in those proceedings, and that the inquiry report should be admitted into evidence.
(b) Procedural limb – The Court had to examine whether the application was admissible ratione loci in respect of the procedural limb. The Russian authorities had instituted their own criminal investigation into the death of the applicant’s husband under domestic law provisions which had given them jurisdiction to investigate offences against Russian nationals wherever they were committed. The pursuance of those proceedings had established a “jurisdictional link” between the applicant and the Russian state. In addition, the suspects in the murder were two Russian nationals who, since their return to Russia, had enjoyed the constitutional protection from extradition. That protection had been relied upon by the Russian authorities to refuse the extradition of one of them to the UK. As a consequence, the UK authorities had been prevented from pursuing the criminal prosecution of the suspects. The fact that the Government had retained exclusive jurisdiction over an individual who was accused of a serious human rights violation constituted a “special feature” of the case establishing the respondent State’s jurisdiction under Article 1 in respect of the applicant’s complaint under the procedural limb. Any other finding would have undermined the fight against impunity for serious human-rights violations within the “legal space of the Convention”, impeding the application of criminal laws put in place by the UK to protect the right to life of their citizens and, indeed, of any individuals within its jurisdiction. The Court therefore dismissed the Government’s objection of incompatibility ratione loci in respect of the procedural limb.
Concerning the merits of the complaint under the procedural limb, the Court noted that the Russian investigative authorities had launched an investigation into the death of Mr Litvinenko two weeks after his death. However, the issue was not so much whether there had been an investigation, as to whether it had been “effective” and whether the authorities had been determined to identify and prosecute those responsible for his death.
The Government had provided the Court with an outline of the investigative steps which had been taken. However, they had repeatedly declined the Court’s request, without justification, to provide a copy of materials from the domestic investigation file and of documents to which they had referred and which had formed the basis of their assertions. On account of the Government’s unjustified refusal to submit the requested documentation, the Court found that the respondent Government had failed to discharge their burden of proof so as to demonstrate that the Russian authorities had carried out an effective investigation capable of leading to the establishment of the facts and bringing to justice of those response for Mr Litvinenko’s killing. It also appeared that the Russian authorities had attempted to thwart the efforts of the British investigators to establish the facts of the case.
Shortly after a magistrates’ court issued a warrant for the arrest of Mr Lugovoy, a last-minute announcement had been made that he would run for election to the Duma. When he was elected two months’ later, he acquired parliamentary immunity. That, however, was not an absolute bar to his being investigated or even prosecuted; the relevant legal provisions and the practice of their application indicated that he could have been deprived of his immunity with the consent of the lower chamber of Parliament of which he was a member. Yet there was no indication that the Russian authorities had sought to explore that possibility.
Finally, the Government had argued that the investigation in the present case had had a transnational dimension and that any failings on the part of the Russian authorities had been due to the UK authorities’ failure to comply with their requests for legal assistance. As no complaint had been made against the UK, it did not fall to the Court to consider whether the UK authorities had complied with their obligation to cooperate with their Russian counterparts. Nonetheless, the Court did not accept that the actions of the UK authorities had displaced the inference that their Russian counterparts had failed to conduct an effective investigation into Mr Litvinenko’s death.
As the Government had not submitted either the criminal investigation file or the requests to the UK for legal assistance, they had not demonstrated that the material requested from the UK had in fact been necessary for their own investigation to progress. This omission was of particular note given that, by the time the requests had been made, the Russian investigation had already concluded that there had been no leaks or thefts from the Russian facility manufacturing polonium 210, and had already “exonerated” Mr Lugovoy and Mr Kovtun of their involvement in the killing and indicated that no other suspects were being investigated.
(c) Substantive limb – The Court considered the admissibility ratione loci of the complaint in respect of the substantive limb. In its recent judgment in Georgia v. Russia (II), the Court had referred to cases concerning control over individuals on account of incursions and targeting of specific persons by armed forces or police of a respondent State abroad, which had brought the affected persons “under the authority and/or effective control of the respondent State through its agents”. The line of those cases had concerned the actions of the respondent States’ armed forces on or close to their borders. However, the principle that a State exercises extraterritorial jurisdiction in cases concerning specific acts involving an element of proximity should apply with equal force in cases of extrajudicial targeted killings by State agents acting in the territory of another Contracting State outside of the context of a military operation. That approach was consistent with the wording of Article 15 § 2 which allowed for no derogations from Article 2, except in respect of deaths resulting from lawful acts of war. The Government’s objection ratione loci – that is to say, whether or not Mr Litvinenko had been under the control of Mr Lugovoy and others and whether or not Mr Lugovoy and others had acted as agents of the Russian State at the material time – was interlinked with the substance of the applicant’s complaint and was examined together with the merits. The Court established the facts on the basis of the evidence available in the case file.
The circumstances of Mr Litvinenko’s death were no longer a matter of speculation and assumption. It had been established, beyond reasonable doubt, that he had been poisoned with polonium 210, a rare radioactive isotope. It had been further established, also beyond reasonable doubt, that the poison had been administered by Mr Lugovoy and Mr Kovtun. The Court rejected the Government’s assertion that the perpetrator or perpetrators of the assassination had not been identified.
The Court addressed the issue whether the assassination of Mr Litvinenko had amounted to the exercise of physical power and control over his life in a situation of proximate targeting. The evidence of premeditation strongly indicated that the death of Mr Litvinenko had been the result of a planned and complex operation. Mr Litvinenko had not been an accidental victim of the operation or merely adversely affected by it; the possibility that he might have ingested polonium 210 by accident was not borne out by the evidence. On the contrary, repeated and sustained attempts to put poison in his drink demonstrated that Mr Litvinenko had been the target of the planned operation for his assassination. The evidence had also established, beyond reasonable doubt, that Mr Lugovoy and Mr Kovtun knew that they had been using a deadly poison. When putting the poison in the teapot from which Mr Litvinenko had poured a drink, they knew that, once ingested, the poison would kill him. The latter had been unable to do anything to escape the situation. In that sense, he had been under physical control of Mr Lugovoy and Mr Kovtun who had wielded power over his life. The administration of poison to Mr Litvinenko by Mr Lugovoy and Mr Kovtun had amounted to the exercise of physical power and control over his life in a situation of proximate targeting.
It had been found as a fact that when Mr Lugovoy and Mr Kovtun had committed the murder of Mr Litvinenko, they had not been acting on their own initiative, but on the direction of another entity. Not only the means by which the killing had been perpetrated (the use of a radioactive isotope which must have come from a reactor under State control) but also the motives pointed to State involvement. Having reviewed all evidence before him, the Chairman of the UK’s Litvinenko Inquiry had considered that there existed a strong probability that when poisoning Mr Litvinenko, Mr Lugovoy and Mr Kovtun had been acting under the direction of the Russian security service. In a case of an extraterritorial extrajudicial targeted killing, the authorities of the State on whose soil it was carried out can only do so much. They can and should, circumstances permitting, identify the perpetrators of the execution and the elements linking them to the State allegedly responsible for the execution. This was what the United Kingdom authorities had done in the instant case.
While there existed a theoretical possibility that the assassination of Mr Litvinenko might have been a “rogue operation” not involving State responsibility, the information needed to corroborate that theory lay wholly, or in large part, within the exclusive knowledge of the Russian authorities which moreover had asserted exclusive jurisdiction over Mr Lugovoy and Mr Kovtun by invoking the constitutional protection against extradition. In those circumstances, the burden of proof had shifted onto the authorities of the respondent State which had been expected to carry out a meticulous investigation into that possibility, identify those involved in the operation and determine whether or not Mr Lugovoy’s and Mr Kovtun’s conduct had been directed or controlled by any State entity or official, which was a factor indicative of State responsibility. The Government, however, had not made any serious attempt either to elucidate the facts or to counter the findings arrived at by the UK authorities. In fact, they had failed to engage with any fact-finding efforts, whether those conducted in the UK or those undertaken by the Court. Most significantly, the Russian authorities had failed to carry out an effective investigation themselves. There was no evidence that, having full access to Mr Lugovoy and Mr Kovtun upon their return to Russia, the Russian authorities had undertaken a verification of the facts already established in the UK’s public inquiry.
Consequently, the Court considered that adverse inferences might be drawn from the respondent State’s refusal to disclose any documents relating to the domestic investigation. Noting the Government’s failure to displace prima facie evidence of State involvement, the Court could not but conclude that Mr Litvinenko had been poisoned by Mr Lugovoy and Mr Kovtun acting as agents of the respondent State. The act complained of was attributable to that state. As the Government had not sought to argue that the killing of Mr Litvinenko could be justified by reference to any of the exceptions in the second paragraph of Article 2, the Court found that there had been a violation of the substantive limb of that provision.
Conclusion: violation under the substantive and procedural limbs (six votes to one).
The Court also held, unanimously, that the respondent Government had failed to comply with their obligations under Article 38 on account of its unjustified refusal to submit requested material relating to the domestic investigation into Mr Litvinenko’s death.
Article 41: EUR 100,000 in respect of non-pecuniary damage.
(See also Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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