Legal summary
June 2023
Navalnyy v. Russia (no. 3) - 36418/20
Judgment 6.6.2023 [Section III]
Article 2
Article 2-1
Effective investigation
Domestic authorities’ refusal to investigate in criminal proceedings plausible claims of applicant’s poisoning with a chemical nerve agent prohibited by the Chemical Weapons Convention: violation
Facts – On 20 August 2020, while on a flight from Tomsk to Moscow, the applicant suddenly fell and lost consciousness. After an emergency landing in Omsk, he was provided with urgent treatment and then taken, in a coma, to a local hospital, where he was put on life support. Shortly afterwards he was transferred for treatment in a German hospital. Forensic examinations carried out in Russia concluded that no potent, poisonous, narcotic or psychotropic substances had been found on samples taken from him or on other items submitted for analysis. In September 2020 the German Government announced that the tests carried out by several independent laboratories revealed unequivocal proof of the presence of a chemical nerve agent from the Novichok group of substances prohibited under the Chemical Weapons Convention (CWC). The Organisation for the Prohibition of Chemical Weapons (OPCW) confirmed the use of a substance prohibited by the CWC.
The applicant survived. However, he remained in intensive care for several weeks, followed by several months of rehabilitation. On the day of the incident a request to open a criminal investigation into his attempted murder by poisoning was lodged on his behalf. He subsequently joined his representatives’ request. The pre‑investigation inquiry ended in a decision refusing to open a criminal investigation. The applicant unsuccessfully challenged that decision.
Law –
Jurisdiction – As the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the application.
Article 2 (procedural):
(a) Applicability – There was no doubt in the circumstances that the applicant’s life had been at serious and imminent risk. Irrespective of whether he had indeed been a victim of a premeditated attack, or whether the attack had involved chemical weapons and had been carried out with the involvement of State agents, the claim of poisoning had not been implausible. Once such a matter had come to the authorities’ attention, that imposed on the State ipso facto an obligation under Article 2 to carry out an effective investigation. Accordingly, even if it had not been immediately clear that the applicant’s life had been put at risk by an “activity or conduct”, or by the “use of force”, the situation had been such as to impose on the State an obligation to carry out an effective investigation within the meaning of Article 2. Given thus the nature of the incident and the overall context, Article 2 was applicable even though the applicant ultimately survived.
(b) Merits – The Court had already held, in the context of the Russian legal system, that a “pre-investigation inquiry”, not followed by “preliminary investigation”, was not capable of leading to the establishment of the relevant facts and leading to the punishment of those responsible. The mere fact of the investigating authority’s refusal to open a criminal investigation into credible allegations falling within the ambit of Articles 2 and 3 could be indicative of the State’s failure to comply with its obligation to carry out an effective investigation. Nevertheless, the Court assessed whether the features of the pre-investigation inquiry in the present case could meet the criteria of effectiveness. It found for the reasons set out below that it had not and could not therefore be considered adequate.
(i) Public nature – The inquiry had fallen short of being public and had made no allowance for the victim’s right to participate in the proceedings.
The Government had not submitted any documentation relating to the investigative steps they had claimed had been taken and it did not appear from the domestic judicial decisions that those steps had been scrutinised by the national courts. Moreover, the Government had not provided the Court with the forensic reports which stated that no traces of poisonous or other substances had been found in the swabs from the applicant’s palms and his nail clippings or on his clothes and other items submitted for analysis. It was thus impossible for the Court to identify the scope of the forensic examinations or to determine whether any experts’ findings had been omitted from the Government’s submissions. The authorities had also withheld items – the applicant’s clothes - that could have been important evidence, without a proper procedural decision to that effect and without reasons for their retention.
The applicant and his representatives had had limited knowledge of the investigative steps taken by the inquiry bodies and had had no access to the inquiry material. The applicant had been unable to obtain the procedural status of a victim, which had deprived him of virtually any opportunity to participate in the proceedings, to appoint experts, ask questions or be kept informed of progress.
(ii) Adequacy – The inquiry had firstly failed to explore the allegations of a possible political motive for the attempted murder; that motive should have been an essential element of the investigation. The applicant was a prominent opposition figure whose activism, particularly in the fight against corruption, had resulted in his multiple arrests, detentions, criminal convictions and ill-treatment, and in several of his cases before the Court he had made a well-founded claim of persecution for political reasons. There had already been reports of repeated threats and attacks against him. However, not only had the inquiry failed to address the incident’s possible link to the applicant’s public activities, but it had not seriously pursued the version of premediated assault, even though no natural causes had been identified by any medical or forensic examination.
Secondly, the inquiry had not followed up on the reported use of a substance identified as a chemical weapon prohibited by international and domestic law, under both of which Russia had been required to open a criminal investigation with a view to establishing the origin of that substance and identify those responsible its ingestion of the applicant. Although Russia’s international obligations in relation to an investigation in this case had been brought to its attention in the special reports of the Parliamentary Assembly of the Council of Europe and United Nations rapporteurs, it did not appear that there had been any follow-up by the Russian authorities.
The validity of the Government’s argument that the investigation could not have been opened because of a lack of cooperation on the part of the German authorities could not be verified, as no relevant material had not been disclosed to the Court. In any event, it was difficult to accept that the domestic inquiry could not have been framed as a criminal investigation because some of the evidence had been withheld abroad. Crucially, the failure to open criminal proceedings had been in itself an obstacle to those investigative actions that could be carried out under Russian jurisdiction. Moreover, the German government had engaged in cooperation by means of other international instruments and there had been sufficient prima facie evidence to initiate a domestic investigation in Russia.
Likewise, the domestic authorities could not rely on their inability to question the applicant, his wife and other people living abroad as a reason for not opening a criminal investigation. The applicant, his family, his associates and his representatives had given numerous statements and had regularly made detailed submissions to the investigating bodies and judicial authorities, setting out their allegations of attempted murder and referring to possible proof. The authorities had therefore been sufficiently informed of their position on the matter. The main reason they had not been questioned had been the lack of procedural status: a person could only be questioned as a victim or witness in the framework of criminal proceedings, which had not been opened. The fact that they had not been questioned, had no bearing on the State’s obligation under Article 2 to conduct an effective investigation, which existed ipso facto.
Thirdly, the domestic authorities should have explored the serious allegations of possible involvement or collusion by State agents, even if they were eventually proved unfounded. In addition to being a public figure, as already established by the Court in Navalnyy v. Russia (no. 2), the applicant was under intensive surveillance by the security services. Once the OPCW had confirmed the use of the substances classified as chemical weapons, that line of investigation should have become a priority. The development and use of such chemicals required time, skill and a level of organisation that could hardly be achieved by individuals unconnected to State agencies. Concealing any such activities over a substantial period would also appear unlikely. Further, a report from an investigative journalism collective, Bellingcat, and an online newspaper, The Insider, had named the specific State agents implicated in the poisoning. However, those serious allegations had either not been verified or the findings had not been disclosed.
Conclusion: violation (unanimously).
Article 46: The Russian authorities’ failure to carry out an effective investigation into the credible allegations of attempted murder, had persisted despite multiple calls by international bodies on the Russian government to elucidate the circumstances of the incident, which had been a matter of serious public concern. For those reasons, the specific individual measures required of the Russian Federation to discharge its obligations under Article 46 had to include prompt investigation in criminal proceedings, which had to be effective within the meaning of Article 2 and take into account the Court’s findings in the present judgment. In the examination of any future cases lodged by the applicant the Court, where appropriate, would draw inferences for the purposes of other related complaints, for as long as the Convention-compliant investigation had not taken place.
Article 41: EUR 40,000 in respect of non-pecuniary damage.
(See also Kolevi v. Bulgaria, 1108/02, 5 November 2009, Legal Summary; Mazepa and Others v. Russia, 15086/07, 17 July 2018, Legal Summary)
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This summary by the Registry does not bind the Court.
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