Published on 26 April 2021

THIRD SECTION

Application no. 4743/21 Aleksey Anatolyevich NAVALNYY against Russia lodged on 20 January 2021 communicated on 16 April 2021

STATEMENT OF FACTS

1 . The applicant, Mr Aleksey Anatolyevich Navalnyy, is a Russian national, who was born in 1976 and lives in Moscow. He is represented before the Court by Ms O. Mikhaylova, a lawyer practising in Moscow.

2 . The facts of the case, as submitted by the applicant and, where specifically indicated, by the Government, may be summarised as follows.

3 . On 17 October 2017 the Court adopted its judgment in Navalnyye v. Russia , no. 101/15. It found, in particular, that the judgment of Zamoskvoretskiy District Court dated 30 December 2014, as upheld on appeal by the Moscow City Court on 17 February 2015, had violated Articles 6 and 7 of the Convention in respect of both applicants, Aleksey Navalnyy and his brother Oleg Navalnyy (§§ 84-85). The Court held that the most appropriate form of redress would, in principle, be the reopening of proceedings, if requested, failing which the individual measures to be taken in the execution of the judgment in question would remain outstanding in accordance with the practice of the Committee of Ministers (§ 95).

4 . On 13 March 2018 the applicants requested the Supreme Court of Russia to quash the judgment of 30 December 2014, and the appeal decision of 17 February 2015, to acquit the defendants and to release Oleg Navalnyy from detention where he remained at that time.

5 . On 25 April 2018 the Presidium of the Supreme Court of Russia, with reference to the Court ’ s judgment, resumed the criminal proceedings in the applicants ’ case. It found no grounds to amend or to reverse the judgment of the Zamoskvoretskiy District Court, having found that it had correctly classified the offences and determined the criminal charges. Aleksey Navalnyy ’ s suspended 3.5 year ’ s sentence with 5-years ’ parole thus remained in force.

6 . In the meantime, on 4 August 2017, the Simonovskiy District Court of Moscow granted the request of the Federal Service for the Execution of Sentences ( ФСИН , hereinafter – FSIN ) and extended the applicant ’ s parole by one year, until 30 December 2020, on the grounds that in 2017 he had been convicted of three administrative offences related to the conduct of public assemblies.

7 . On 20 August 2020 the applicant took a domestic flight from Tomsk to Moscow. During the flight he suddenly experienced acute malaise and lost consciousness. The aircraft had to land in Omsk and the applicant, in a coma, was transported to a local municipal hospital where he was put on life support.

8 . On the same day the applicant ’ s associate, Mr G., filed a request with the Investigation Committee of the Russian Federation to open criminal proceedings alleging that the applicant had been intentionally poisoned by an unknown substance. He stated that there had been an attempted murder related to the applicant ’ s political activity.

9 . On 22 August 2020 the applicant was transferred to Germany for treatment in the Charité University Medical Centre in Berlin (hereinafter – the Charité hospital).

10 . On 6 October 2020 the Organisation for the Prohibition of Chemical Weapons (OPCW) issued a report on technical assistance requested by Germany. It confirmed that the biomarkers of the cholinesterase inhibitor found in the applicant ’ s blood and urine samples had similar structural characteristics as the toxic chemicals listed in the Annex on Chemicals to the Chemical Weapons Convention.

11 . The applicant remained in the Charité hospital until 23 September 2020. After the discharge he continued outpatient treatment until 15 January 2021.

12 . The alleged insufficiency of the inquiry into the cause of the applicant ’ s poisoning is the object of application no. 36418/20, notified to the respondent Government on 12 January 2021.

13 . On 23 November 2020 the applicant notified the FSIN that he was undergoing outpatient treatment in Germany and indicated his address in Berlin, stating that he would later inform the authorities about his recovery and the date of his return to Russia. He attached a certificate issued by the Charité hospital.

14 . On 28 December 2020, while the applicant was still in Berlin, the FSIN issued a public statement that the applicant had omitted to check in regularly with his local office for the execution of sentences and that if his failure to do so is confirmed, his parole could be revoked.

15 . On 29 December 2020 the FSIN put the applicant on the “wanted” list.

16 . On the same day the Investigation Committee of Russia published a statement that the applicant was charged with another criminal offence. He was suspected of misappropriation of donations made to his foundation.

17 . On 13 January the applicant announced that he would return to Russia on 17 January 2021.

18 . On 14 January 2021 the FSIN issued a public statement that the applicant would be detained upon his arrival in Russia to stand the proceedings for the conversion of his parole to the prison sentence.

19 . On 17 January 2021, the applicant returned to Russia from Germany and was arrested at the airport border crossing.

20 . On 18 January 2021 the Khimkinskiy Town Court of the Moscow Region held a hearing at the Khimki police station and ordered the applicant ’ s detention pending the proceedings for the enforcement of the suspended criminal sentence. He was transferred to the pre-trial detention facility SIZO-1 “Matrosskaya Tishina” in Moscow.

21 . On 2 February 2021 the Simonovskiy District Court of Moscow lifted the parole provided for in the Zamoskvoretskiy District Court ’ s judgment of 30 December 2014. It dismissed the applicant ’ s argument that he had notified the police of his whereabouts and had provided medical certificates on his continued outpatient treatment in Germany, as well as his argument that the police had not tried to contact him or his lawyers. It also dismissed the argument that the sentence in question had been examined by the Court which had found that it had been given in violation of Articles 6 and 7 of the Convention. The Simonovskiy District Court of Moscow decided to replace the parole with real imprisonment, which after the deduction of the period the applicant spent in pretrial detention under the house arrest (from 28 February 2014 to 18 February 2015) and his detention pending the conversion proceedings, amounted to two years and six months to be served in a general regime correctional colony.

22 . On 20 January 2021 the applicant seized the Court with a request for an interim measure to be indicated to the Russian Government under Rule 39 of the Rules of Court. He asked the Court to order his immediate release. He submitted that the detention carried the imminent threat to his life in view of the alleged involvement of state agents in a past near-fatal attack on him with the use of chemical weapons, as well as high risk of political persecution and/or retaliation on the part of the impugned agents or agencies.

23 . On 21 January 2021 the Court ’ s duty Judge adjourned the examination of Rule 39 request and asked the Government to answer the following questions:

“ (i) In view of the arguable allegation of a near-lethal attack on the applicant in August 2020 with the use of chemical nerve agent, and the fact that the perpetrators had not been established by the Russian authorities, does the risk to the applicant ’ s life persist to date?

(ii) If so, what measures are being taken by the Russian authorities to safeguard his life and well-being, in particular while he is in custody (see Gongadze v. Ukraine , no. 34056/02, §§ 167-171, ECHR 2005 ‑ XI)?

(iii) Furthermore, are the conditions of detention and the treatment of the applicant subject to regular independent monitoring in line with the European standards (see the Recommendation Rec(2006)2-rev of the Committee of Ministers to member States on the European Prison Rules, § 93)? ”

24 . On 26 January 2021 the Government answered that the applicant was in a solitary confinement in “properly guarded” premises, in a cell under video surveillance. They specified that he had a refrigerator, a tea pot, cold and hot water taps and a TV set. They submitted that while in detention the applicant had been visited by his lawyers and members of a public monitoring commission on several occasions; that he had been able to receive correspondence and to make phone calls; that he had been examined by a medical doctor, and that had made no complaints as regards the conditions of his detention.

25 . On 3 February 2021 the applicant submitted his comments. He pointed out that the conditions of detention as described by the Government were not able to guarantee his safety. As to the video surveillance, he argued that the existence of such surveillance had not in the past prevented other homicide and suicide attempts in the same detention facility. Furthermore, it was not a sufficient safeguard against perpetrators like those involved in the August 2020 attack with the use of chemical weapons which is universally illegal and generally inaccessible. Those individuals who, he believed, were state agents, would not be deterred by those security arrangements. He accused the authorities of bad faith in their failure to respect his human rights on multiple occasions some of which had already been examined by the Court, and most recently by their refusal to conduct a criminal investigation into his attempted assassination in August 2020. He maintained that in detention his life and limb were under imminent threat as he remained under control of the authorities who had persecuted him and his family members.

26 . On 16 February 2021 the Court decided to grant the applicant ’ s request for interim measure and to indicate to the Government the applicant ’ s immediate release. The Committee of Ministers was notified of that decision, in accordance with Rule 39 § 2 of the Rules of Court. The decision was notified to the parties on 17 February 2021.

27 . On 20 February 2021 the Moscow City Court examined the appeal against the Simonovskiy District Court ’ s judgment of 2 February 2021 and upheld it. It held, in particular, that the applicant ’ s allegations that his imprisonment was politically motivated and associated with a risk to life and health were unsubstantiated. It also stated that the Court ’ s decision on interim measures could not be taken into account as the Court was not a superior instance in relation to the domestic courts and could not interfere with their judicial activities; moreover, the indication of the interim measure had been addressed to the Russian Government and not the courts, and was thus irrelevant to the proceeding concerning the conversion of the applicant ’ s parole into prison sentence.

28 . On 22 February 2021 the Russian Government requested the Court to reverse its decision of 17 February 2021 on the basis that the applicant ’ s allegations were not supported by evidence and were politically motivated and that in taking that decision the Court had violated the principle of subsidiarity and had acted ultra vires.

29 . On 3 March 2021 the applicant informed the Court that he had not been released and requested the Court to inquire with the Government about the reason for their failure to implement the indicated interim measure.

30 . On 20 February 2021, immediately after the appeal proceedings regarding the conversion of parole, the applicant stood trial before the Justice of the Peace of Circuit no. 321 of the Yuzhnoya Medvedkovo District of Moscow on charges of defamation. He was found guilty of having made defamatory statements in social networks about persons, including a war veteran, who had featured in a video promoting amendments to the Constitution. He was sentenced to a fine of 850,000 roubles (about 9,500 euros). The court further held that the three and a half year ’ sentence given pursuant to the judgment of 30 December 2014 was to be joined to the sentence in the defamation case. Referring to the Simonovskiy District Court ’ s judgment of 2 February 2021, the court indicated that the sentence was to be reduced on account of the period from 28 February 2014 to 18 February 2015 when the applicant had been detained under the house arrest and the period from 17 January 2021 to 20 February 2021 when he had been detained pending the conversion proceedings.

31 . On 25 February 2021 the applicant was transferred from SIZO-1 to an undisclosed detention facility. Neither his family nor his lawyers had any information about his whereabouts, or contact with him, until 3 March 2021. On the latter date the lawyers located him in SIZO-3 of the Vladimir Region.

32 . According to the applicant, the conditions of detention in SIZO-3 were poor: there was no access to drinking water, the food was extremely meagre; he could not buy food from the prison store for eight days as his funds were not transferred from his account in SIZO-1 to the account in SIZO-3. Lawyers were allowed to visit him daily but every day they had to wait for several hours before meeting him.

33 . According to the applicant, from 25 February to 11 March 2021 he requested the staff of SIZO-3 several times to provide him with medical assistance in relation to his back pain. These requests were refused. According to the Government, the applicant did not complain of back pains while in SIZO-3.

34 . On 5 March 2021 the applicant ’ s lawyer requested the officials of SIZO-3 to allow access of the medical doctor, a neurology specialist of the applicant ’ s choice, to examine him. No response was given to this request.

35 . On 11 March 2021 the applicant was transferred from SIZO-3 to an undisclosed detention facility. Neither his family nor his lawyers had any information on his whereabouts or contact with his until 15 March 2021. On the latter date the lawyers located him in correctional colony IK-2 of the Vladimir Region ( ФКУ ИК-2 УФСИН России по Владимирской области , hereinafter IK-2). On the same day they met the applicant at the facility. This and the subsequent meetings between the applicant and his lawyers were not confidential.

36 . According to the applicant, in IK-2 his head was shaved, he was ordered to wear prison uniform, his correspondence with the outside world and the possibility to receive parcels were strictly limited. During the night he was subjected to hourly checks whereby the warden entered his cell, pointed a video camera at him and pronounced that the applicant was present. This procedure was carried out because the applicant had been categorised as a person at risk of fleeing. According to the applicant, the night-time checks were in addition to the constant video surveillance with a video-camera placed above his bed, while the daytime checks took place every two hours. The applicant also referred to severe psychological pressure by the facility officials inflicted directly or through other detainees. He relied on statements of former prisoners of the same correctional facility corroborating his account. The latter confirmed the existence in IK-2 of restrictions and practices not typical for general-regime facilities, in particular hourly night-time checks on detained at risk of fleeing, head shaving, forbidding detainees to make eye contact, forcing them to perform repetitive meaningless tasks at certain speed, having them maintain a particular posture for every type of activity, isolating them from outside contacts with no or very few family visits allowed; IK-2 is not connected to the general system of electronic correspondence for prisoners; during any free time detainees are obliged to sit in front of TV watching programs selected for them.

37 . The Government submitted that the night-time checks on the applicant were conducted in such a way as not to wake him up.

38 . Upon his transfer to IK-2, on 12 March 2021 the applicant informed the facility officials of his health problems. On daily basis he requested them to provide him with medical assistance and to allow the medical specialist chosen by him to examine him. According to the Government, on 12 March 2021 relevant treatment was recommended to him but he refused.

39 . On 16 March 2021 the applicant ’ s lawyers submitted another request with the IK-2 to have the applicant examined by an independent medical specialist. Their request was not answered.

40 . On 19 March 2021 the applicant was examined by a neurologist from the penitentiary medical service who told the applicant that the diagnosis and treatment would be indicated in the applicant ’ s medical file. The applicant was not informed about his diagnosis until 30 March 2021, during which period he was receiving two “Ibuprofen” pills per day and “Ibuprofen” gel. According to the Government, the neurologist from the penitentiary medical service has given the applicant recommendations for out-patient treatment and for magnetic resonance imaging (MRI) screening.

41 . According to the applicant, his condition has been deteriorating. He suffers from severe back pain, burning sensation in his right thigh, numbness and coldness in his lower limbs and inability to walk for lack of control over his right leg.

42 . On 24 March 2021 the applicant was taken to an undisclosed medical institution which, according to the Government, did not belong to the penitentiary system, for MRI screening. The applicant ’ s lawyers were not informed of that examination. The results of the examination were not disclosed to the applicant or his lawyers until 30 March 2021.

43 . According to the Government, on 25 March 2021 the applicant saw a neurologist who adjusted the prescribed treatment. They specified that the prescribed medicines including anti-inflammatories, painkillers and vitamins, which were available at the penitentiary medical unit.

44 . On 22 March 2021 the applicant ’ s lawyer Mr K. submitted a complaint to the head of IK-2 in which he questioned the legality of such conduct in respect of the applicant as shaving his head, delays of 4-5 hours before meeting his lawyers to the detriment of his right of four-hour meeting allowed by law, the lack of confidentiality of such meetings, the inadequate food provided in the detention facility and the refusal to allow the applicant to consume his own food received in parcels, the deprivation of uninterrupted sleep through the hourly checks, the failure to inform the applicant ’ s family about his transfer to IK-2, the lack of medical assistance for the persistent back pains, and the abusive conduct such as the facility staff shouting at the applicant in front of his lawyers.

45 . On 25 March 2021 the applicant filed a complaint with the head of IK-2, copied to the Chief of FSIN for Russia and to the Prosecutor General, alleging the serious deterioration of his health on account of the refusal to provide him with medical assistance and to allow an independent medical assistance to which he considered himself entitled in accordance with law. He requested to be allowed the medical specialist of his choice to treat him and to receive a parcel with necessary medications.

46 . On the same day the applicant submitted a complaint to the Chief of FSIN for Russia, with a copy to the Prosecutor General, about the sleep deprivation resulting from hourly security checks on him. He indicated that the prison regulations guaranteed uninterrupted eight-hour sleep to all detainees. In the same letter he complained about having received a warning for having got up from his bed in the morning ten minutes before the wake-up call.

47 . On 25 March 2021 the applicant ’ s lawyers filed a complaint with the Prosecutor General alleging, inter alia , the failure to provide the applicant with medical assistance, the continued sleep deprivation and the hindrance of his lawyers ’ access to him in IK-2. On the same day they filed similar complaints with the Prosecutor of the Vladimir Region, the Chief of FSIN for Russia, the Chief of FSIN for the Vladimir Region, and the Russian Ombudsperson.

48 . On 30 March 2021 the applicant was informed about his diagnosis and the prescribed treatment. On the same day the applicant ’ s lawyers consulted an independent neurology specialist on whether the prescribed treatment was appropriate for the diagnosed condition. According to the Government, on the same date a request was forwarded to the Pirogov National Medical Research Centre for Traumatology and Orthopaedics to have the applicant consulted by medical specialists independent of the penitentiary system, and the Centre gave their preliminary agreement.

49 . On unspecified date Dr B., neurology specialist of the Sklifasovskiy Institute of Clinical Medicine of the First Moscow Medical University attached to the Ministry of Healthcare, issued recommendations to amend the treatment prescribed to the applicant, to conduct additional examinations and tests and to convene a medical board or a medical commission to define further treatment based on the results of the tests. On 31 March 2021 the applicant ’ s lawyer submitted a request to the acting Chief of FSIN ’ s Medical Service, with a copy to the head of IK-2, to implement the above specialist recommendations.

50 . On the same day, 31 March 2021, the applicant began a hunger strike demanding access to medical assistance by an independent specialist.

51 . According to the Government, the applicant ’ s state of health and his medical treatment is currently assessed as satisfactory; the night inspections are conducted without awakening the applicant; he regularly sees his lawyers, and he had not lodged any complaints raising fear for his personal safety or security.

52 . The Committee of Ministers, at its 1398th meeting, 9-11 March 2021 (DH), took a decision urging the Russian authorities to take all possible measures to quash the convictions in respect of Aleksey Navalnyy and Oleg Navalnyy and to erase all negative consequences against them; awaiting that to release Mr Aleksey Navalnyy without delay [1] .

COMPLAINTS

The applicant complains under Article 2 of the Convention that his imprisonment carries serious and imminent threat to his life and limb. He alleges that the risk is demonstrated, in particular, by the previous assassination attempt with the use of chemical weapons and the Russian authorities ’ failure to investigate it in criminal proceedings.

He also complains under Article 3 of the Convention that he is subjected to ill-treatment through sleep deprivation, excessively long physical activities required of him despite his health complaints, inadequate nutrition resulting from the refusal of food parcels by the correctional colony, severe psychological pressure, including verbal abuse by wardens, head shaving and denial of requisite medical assistance.

In his letter of 3 March 2021, the applicant complained about the Russian authorities ’ failure to comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court.

QUESTIONS TO THE PARTIES

1 . Having regard to the applicant ’ s allegations, is his detention compatible with his right to life, ensured by Article 2 of the Convention?

2 . Given the background of the applicant ’ s near-lethal deterioration of health induced by toxins in 2020 and its impact on his health, are the applicant ’ s current state of health, the medical facilities and treatment compatible with the requirements of Articles 2 and 3 of the Convention?

3 . Having regard to the conditions of detention and the aspects of prison routine as described by the applicant, has the applicant been subjected to ill ‑ treatment, in breach of Article 3 of the Convention?

4 . Given the Government ’ s response to the Court ’ s decision to indicate, on 16 February 2021, an interim measure under Rule 39 of the Rules of Court, has there been a hindrance by the State with the effective exercise of the applicant ’ s right of application, ensured by Article 34 of the Convention? Was there an objective impediment which prevented compliance with the Court ’ s Rule 39 measure? Did the Government take all reasonable steps to remove the impediment and to keep the Court informed of the situation (see Paladi v. Moldova [GC], no. 39806/05, §§ 88-102, 10 March 2009)?

[1] https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=0900001680a1b372