Alexey Navalny has won another European Court of Human Rights case against the Russian government. This time, the court’s 17-judge Grand Chamber not only upheld an ECHR ruling from February 2017, but it also acknowledged the political motives behind Navalny's persecution. The court determined that Russia violated Article 18 of the European Convention on Human Rights, which protects individuals’ “rights and freedoms.” The ECHR only rarely invokes Article 18.
“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.”
The European Convention provides the legal conditions for restricting many rights and freedoms. For example, in certain circumstances it recognizes the state’s right to arrest and imprison people by court order. Abusing this right to achieve some hidden objective (like removing a political competitor), however, is a violation of the Convention.
Article 18 violations always accompany some other violation of the Convention. With Navalny, for instance, the Russian authorities also violated his right to liberty and security of person (Article 5) and right to freedom of assembly and association (Article 11).
When the Convention was drafted in the mid-20th century, Article 18 was added as a check on the abuse of power, especially with regard to political opponents. The idea was to forbid the state from restricting the opposition’s rights under the pretext of defending the public interest. The article’s authors spoke openly about the threat of totalitarianism, and one official said, “In my view, we should be afraid today not that totalitarianism will take power by force, but that it will try to gain a foothold through pseudo-legality.”
Before October 2017, the ECHR satisfied only five of 200 lawsuits claiming Article 18 violations, according to calculations by RAPSI News. In all five cases, the court sided with individuals from former Soviet countries: Russia, Moldova, Ukraine, and Azerbaijan.
Applicants to the ECHR often claim to the be the victim of political persecution, but the court typically refuses to acknowledge such abuses, even when determining that states have violated other rights. This is how things shook out in the “Bolotnaya Case” (Andrey Barabanov, Alexey Polikhovich, Stepan Zimin, Leonid Kovyazin, and Denis Lutskevich), the “Yukos Case” (Mikhail Khodorkovsky and Platon Lebedev), the “Kirovles Case” (Alexey Navalny and Pyotr Ofitserov), and the “Yves Rocher Case” (Alexey and Oleg Navalny).
The burden of proof in Article 18 cases is on the applicant, who must provide indisputable evidence that the state’s actions were motivated by a hidden agenda. By default, the ECHR believes that governments comply with the Convention in good faith, without malice. Proving otherwise is often very difficult, but it’s not impossible.
In Gusinsky’s case, for example, the evidence of a hidden motive was an agreement signed by Print Minister Mikhail Lesin, promising to end a criminal investigation against Gusinsky, in exchange for selling his shares in “Media-Most” to Gazprom.
In November 2017, the ECHR reached a verdict in a case involving former Georgian Prime Minister and Interior Minister Vano Merabishvili, ruling by the minimum margin (nine to eight) that the Georgian government violated his Article 18 rights when he was detained and secretly moved to an interrogation room and compelled to surrender former President Mikheil Saakashvili’s bank account numbers. The ruling marked the first time the court clarified how Article 18 should be enforced, which is especially meaningful because the Grand Chamber has to right to interpret the Convention’s provisions.
The Merabishvili ruling made it easier for people to win Article 18 cases. States accused of violating this part of the Convention are now required to produce evidence exclusively at their disposal, and the court can interpret states’ refusal to share such evidence as confirmation of applicants’ charges. Additionally, judges are allowed to consider circumstantial evidence and any incident’s wider context.
Siding with Navalny, the Grand Chamber directly cited the interpretations laid out in the Merabishvili verdict. In their dissenting opinion, however, five judges (including Russian judge Dmitry Dedov) said these references are misguided.
Winning her case against the Ukrainian government in 2013, Yulia Tymoshenko tried to present the ECHR’s verdict as an acknowledgement of political persecution, arguing that her arrest in August 2011 was supposedly meant to keep her from running in parliamentary elections. The European Court actually refused to recognize any political motives in the case, however, determining that Tymoshenko was arrested as punishment for disrespecting the Ukrainian courts, and this was ruled a violation of the Convention.
The ECHR also found no political motive in the Convention violations against Vladimir Gusinsky.
The Grand Chamber ruled that each new excuse for arresting Alexey Navalny grows increasingly implausible. Twice, the judges decided, there wasn’t even a legal pretext for detaining the anti-corruption activist — there was only naked political persecution (this was at a single picket near the Federal Investigative building on October 27, 2012, and outside Moscow's Zamoskvorechye District Court building on February 24, 2014, when the judge announced a “Bolotnaya Case” verdict). At both events, Navalny was not an organizer, and police arrested him simply because he is a prominent opposition figure.
Additionally, the ECHR also drew attention to the Russian government’s tightening of procedures for holding public events and the escalation of penalties for violating these rules (including felony charges), as well as the Russian authorities’ efforts to take control of the political opposition’s actions.