Communicated on 12 January 2021 Published on 1 February 2021

THIRD SECTION

Application no. 36418/20 Aleksey Anatolyevich NAVALNYY against Russia lodged on 21 August 2020

STATEMENT OF FACTS

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.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 20 August 2020 the applicant took a 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.

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 that had been an attempted murder related to the applicant ’ s political activity.

On 22 August 2020 the applicant was transferred for treatment in the Charité hospital in Berlin.

On 27 August 2020 Mr G. ’ s request for investigation was forwarded to the Zapadno-Sibirskoye Transport Department of the Investigation Committee.

On 1 September 2020 Mr G. challenged the inaction of the Investigation Committee before the Basmannyy District Court of Moscow referring to Article 125 of the Code of Criminal Procedure.

On 3 September 2020 the Chief of the Investigation Committee ’ s department for processing petitions submitted a written explanation to the Basmannyy District Court stating that Article 125 was not applicable as there was no legal act to challenge under this provision.

On the following day the German Government made a statement. Its later publication by the Press and Information Office of the German Federal Government in the form of a press release read as follows:

“On 2 September 2020, the Federal Government announced that, at the request of the Charité – Universitätsmedizin Berlin, a specialist Bundeswehr laboratory carried out toxicological tests on samples from Alexei Navalny. The results of these tests have revealed unequivocal proof of the presence of a chemical nerve agent from the Novichok group.

This constitutes a severe violation of the Chemical Weapons Convention (CWC). The Federal Government has therefore requested that the Organisation for the Prohibition of Chemical Weapons (OPCW) help analyse evidence related to the Navalny case. This request for OPCW assistance was made in accordance with Article VIII 38 (e) of the CWC, which enables all States Parties to obtain technical assistance from the OPCW.

On this basis, the OPCW has taken test samples from Mr Navalny and has made the necessary arrangements to have these examined in OPCW Designated Laboratories.

Moreover, the Federal Government has requested that France and Sweden as European partners conduct an independent examination of the German evidence, based on new samples taken from Mr Navalny. The results of this examination by specialist laboratories in France and Sweden have meanwhile been released and confirm the German findings.

In efforts separate from the OPCW examinations, which are still ongoing, three laboratories have meanwhile independently of one another presented proof that Mr Navalny ’ s poisoning was caused by a nerve agent from the Novichok group.

We once again call on Russia to make a statement on the incident. We are closely consulting with our European partners regarding possible next steps.”

On 4 September 2020 the Basmannyy District Court rejected Mr G. ’ s complaint on the grounds that his request had been forwarded to the relevant department and that he, as the applicant ’ s representative acting on his behalf, could access the information relating to its processing. Therefore his rights had not been infringed.

Mr G. appealed to the Moscow City Court stating that the Investigation Committee had neither instituted the criminal proceedings he had requested nor had taken a formal decision dispensing with the investigation within the statutory time-limit of three days. Moreover, he pointed out that the obligation to investigate the alleged attempted murder arose also from the public statement of the German authorities to the effect that the attempt on the applicant ’ s life had been carried out with the use of a chemical agent from the Novichok group.

On 18 September 2020 the investigator of the Tomsk Department of the Interior issued a decision dispensing with the criminal investigation into the applicant ’ s alleged attempted murder on the grounds that there had been no objective information received to that date suggesting that any intentional criminal acts had been committed in respect of the applicant. It was noted that the pre-investigation inquiry had been extended to 19 September 2020, that a request for information had been sent to the German competent authorities and that it had not been possible in the preceding period to obtain explanations from Ms P., one of the applicant ’ s team members who were on the same trip to Tomsk.

On the same day the Deputy Chief of the Tomsk Department of the Interior quashed the above decision and extended the pre-investigation inquiry by further 30 days. The decision indicated that the applicant ’ s wife and his doctor were to be questioned, as well as Ms P., and that other steps had to be taken for the inquiry to be complete.

On 21 September 2020 Mr G. challenged the inaction of the Tomsk Department of Interior before the Kirovskiy District Court of Tomsk referring to Articles 125, 144 and 145 of the Code of Criminal Procedure.

On 28 September 2020 the Moscow City Court upheld the decision of the Basmannyy District Court of 4 September 2020 having found no breach of procedural or substantive law.

On 2 October 2020 the Kirovskiy District Court dismissed the complaint filed by Mr G. having found no reasons to establish that the investigating bodies had been inactive or that they had breached the statutory time-limits.

On 7 October 2020 Mr G. challenged the decision of the Kirovskiy District Court. According to the applicant, the appeal proceedings are pending.

On 16 October 2020 the investigator of the Tomsk Department of the Interior issued a decision dispensing with the criminal investigation into the applicant ’ s attempted murder on the grounds that no objective information had been obtained suggesting that any intentional criminal acts had been committed in respect of the applicant. It was noted that the inquiry involved questioning of over 200 persons, including the medical staff, the airline staff and the passengers of the flight concerned, the staff of the hotel, restaurants and the airport café, as well as examining multiple venues and material exhibits. It was also noted that there had been no possibility to question the applicant, Ms P. and other persons whose questioning was necessary for taking a lawful and well-reasoned decision in the case; also, no reply had been received from the German authorities pursuant to the earlier legal assistance request.

On the same day the Deputy Chief of the Tomsk Department of the Interior quashed the above decision and extended the pre-investigation inquiry by further 30 days.

On 30 October 2020 the Kirovskiy District Court examined and rejected yet another complaint of Mr G. about the inaction of the Tomsk Department of the Interior. It found that the investigating authorities had acted lawfully. The court also rejected the request to return the applicant ’ s personal belongings seized for the inquiry, stating that it had no competence to decide on the matter. In his application form of 2 November 2020 the applicant expressed his intention to appeal against this decision.

Article 125 of the Code of Criminal Procedure provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor which are capable of adversely affecting the constitutional rights or freedoms of the participants to criminal proceedings. The court must examine the complaint within five days. The complainant, his counsel, the investigator and the prosecutor are entitled to attend the hearing. The complainant must substantiate his complaint (Article 125 §§ 1, 2, 3 and 4).

Following the examination of the complaint, the court either declares the challenged decision, act or failure to act unlawful or unjustified and instructs the responsible official to rectify the indicated shortcoming, or dismisses the complaint (Article 125 § 5).

Article 144 of the CCrP establishes that every report of a crime must be accepted, verified and decided upon within three days by an inquiry officer, inquiry agency, investigator or prosecutor. They may proceed, with experts ’ assistance or on their own, to documentary verifications, checks, and the examination of documents, objects or dead bodies, and may issue compulsory orders for operational search activities (Article 144 § 1). The aforementioned period of three days may be extended to ten days, and where the documentary inspections, revisions, forensic examinations, examination of documents, objects or dead bodies, as well as operational and investigative measures are to be performed, to thirty days (Article 144 § 3).

Following the examination of the report of a crime the competent authority decides either to open a criminal case, to refuse to open a criminal case or to forward the report of a crime to another law-enforcement agency with the relevant jurisdiction (Article 145 § 1). In the latter case the same authority takes measures to preserve the traces of the offence (Article 145 § 3). The complainant may challenge the decision taken pursuant to Article 145 § 1 (Article 145 § 2).

COMPLAINTS

The applicant complains under Article 2 in conjunction with Article 13 of the Convention that he had been poisoned with the chemical agent which only state security services have access to and that the Russian authorities have failed to conduct an effective investigation into his attempted murder.

QUESTIONS TO THE PARTIES

1 . Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in view of the fact that the appeal proceedings concerning the Kirovskiy District Court ’ s decision of 2 October 2020 are pending, and in the absence of information about the state of proceedings following the same court ’ s decision of 30 October 2020 (see Dobriyeva and Others v. Russia , no. 18407/10, §§ 78-79, 19 December 2013; Salikhova and Magomedova v. Russia , no. 63689/13, §§ 88-89, 26 January 2016)?

The Government are requested to provide an update on the state of both sets of proceedings.

2 . Has the applicant ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

In particular, having regard to the procedural protection of the right to life (see Kılıç v. Turkey , no. 22492/93, § 78, ECHR 2000 ‑ III; Makaratzis v. Greece [GC], no. 50385/99, § 55, ECHR 2004 ‑ XI; Yotova v. Bulgaria , no. 43606/04, § 69, 23 October 2012; and Makuchyan and Minasyan v. Azerbaijan and Hungary , no. 17247/13, §§ 154-155, 26 May 2020; see also Razzakov v. Russia , no. 57519/09 , §§ 61 and 64, 5 February 2015; Khayrullina v. Russia , no. 29729/09, §§ 57-68, 19 December 2017; Smolentsev v. Russia , no. 46349/09 , § 73, 25 July 2017), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?