House arrest of an activist and over-limitations in his communication. Violation of the right to freedom and freedom of expression
JUDGMENT
Navalnyy v. Russia 09.04.2019 (n. 2) (no. 43734/14)
SUMMARY
The case concerned Mr Navalnyy being held under house arrest during a criminal investigation
against him and the restrictive measures imposed on him during that time.
The Court found that the house-arrest order had not been justified, particularly in view of the fact
that there had been no risk of Mr Navalnyy absconding and trying to avoid the investigation.
The restrictions on him, including tight limits on his communicating, had been out of proportion to
the criminal charges he had faced. It was also apparent that he had been treated in that way in order
to curtail his public activities
PROVISIONS
Article 5
Article 10
Article 18
PRINCIPAL FACTS
The applicant, Aleksey Anatolyevich Navalnyy, is a Russian national who was born in 1976 and lives
in Moscow (Russia). He is an anti-corruption campaigner and opposition political activist.
In February 2014 the applicant was placed under house arrest while being investigated, along with
his brother, for alleged fraud and money laundering in relation to two companies, Multidisciplinary
Processing Ltd and Yves Rocher Vostok Ltd.
During the investigation he received a warning for travelling to Moscow Region without proper
authorisation and was arrested twice after attending a court hearing in Moscow to hear verdicts
against people who had taken part in a political rally in May 2012 and attending a stationary
demonstration on the evening of the verdicts. In February 2014 he was placed under house arrest,
which was extended several times. It was based on a risk he might abscond during the investigation,
threaten witnesses, or continue his alleged criminal activity.
The order included restrictions. He was banned from communicating with anyone but his immediate
family or lawyers; from receiving or sending any correspondence; from using any means of
communication or the Internet; and from making statements to the media about his criminal case.
He was given a tracking bracelet and was not allowed to go to work, take walks, carry out errands or
leave his apartment other than to attend procedural acts and the occasional doctor’s visit.
In August 2014 the Zamoskvoretskiy District Court narrowed the prohibition on his communicating
to being that of his communicating with anyone involved as a witness in the criminal case. In October the same court ended the ban on his making public comments as it was not in compliance with the Code of Criminal Procedure. It also stated that the banned means of communication now included the radio and television.
In December 2014 Mr Navalnyy and his brother were found guilty of the charges in relation to MPK
and Yves Rocher Vostok. The applicant was given a suspended sentence of three and half years in jail
and a fine, although the fine was quashed on appeal.
In January 2015 he announced publicly that he refused to comply with the house arrest, cut off his
bracelet and went to his office. He stated that he had not been given a written extension to the
house-arrest order within the legal time-limit. He was not stopped or penalised.
THE DECISION OF THE COURT
Article 5
The Court held that the house arrest had been a deprivation of liberty within the meaning of the
Convention and it therefore had to comply with one of the permissible grounds under Article 5.
It noted that the house-arrest order had been deemed necessary because Mr Navalnyy had allegedly
breached the previous preventive measure of an undertaking not to leave Moscow during the
investigation, which apparently indicated that the authorities feared his absconding.
However, he had shown no sign of aiming to flee the investigation, indeed, he had attended all the
necessary investigatory acts. The travel restriction had not stated whether he should notify
investigators before or after visiting Moscow Region and those visits had apparently been family
outings, with no connection to the case. He had also been under intense surveillance at the time.
The Court therefore did not see how the domestic court could have determined that Mr Navalnyy
had breached his undertaking not to leave Moscow and could not discern a reason based in the
criminal process to order house arrest. The order had therefore been unlawful, which had applied throughout the house-arrest period. His detention had not met the requirements of Article 5 § 1 and
there had been a breach of the Convention.
Article 10
The Government argued that Mr Navalnyy’s freedom of expression had not been restricted while he
was under house arrest, for instance, he had given an interview to the New York Times. The
restrictions on his communications had been to prevent him commenting on the criminal case.
Mr Navalnyy stated in particular that the restrictions had been unlawful as they were not on the
exhaustive list set down in the Code of Criminal Procedure.
The Court took note of the two court decisions in August and October 2014 which had eased the
communication restrictions on Mr Navalnyy, which meant that before that time they had not been
in accordance with the law.
The subsequent prohibition on using radio and television as a means of communication had been
even wider than the earlier ones. However, the Court did not rule on whether the new restriction
had complied with domestic law as it had anyway not pursued a legitimate aim. In particular, there
had been no link between that measure and any risk of his absconding.
Furthermore, while the restrictions in the Code of Criminal Procedure could sometimes be justified
by the aim of a carrying out a proper criminal investigation, such had not been the situation in Mr
Navalnyy’s case. There had been no link between the communications ban and the need to make
sure he appeared before an investigator or court, and no link with the goals of criminal justice.
The Court found that he had faced restrictions on his freedom of expression that had not been in
accordance with the law and had not pursued any of the aims in Article 10 § 2. He had therefore
suffered a violation of Article 10.
Article 18
The Court noted that the house arrest had been ordered after Mr Navalnyy’s two arrests in February
2014 for taking part in unauthorised public gatherings. Those events had been part of the earlier
case of Navalnyy v. Russia, which had led to the finding of a violation of Article 5, Article 11 and
Article 18. It had accepted in that case that he had been targeted as a political activist.
It found that the house-arrest order, which had lasted 10 months, was not in proportion to the
alleged crimes, indeed his brother, the main defendant, had not suffered such a measure. The
restrictions on Mr Navalnyy during his house arrest had become more and more incongruous over
time and parts of the communications ban had even been found to be unlawful in court.
The Court held that the evidence it had relied on in Navalnyy v. Russia could be used in this
application too and that it corroborated his allegations that the house-arrest and restrictions on him
had been aimed at limiting his public activities. They had pursued the same aim of the suppression
of political pluralism and had had an ulterior purpose within the meaning of Article 18. There had
therefore been a violation of that provision, taken in conjunction with Article 5.
Just satisfaction (Article 41)
The Court held that Russia was to pay the applicant 20,000 euros (EUR) in respect of non-pecuniary
damage and EUR 2,665 in respect of costs and expenses(echrcaselaw.com editing).
