PARTLY DISSENTING OPINION OF JUDGE DEDOV

I regret that I cannot join the conclusions of the majority in finding a violation of both the procedural and the substantive limb of Article 2 of the Convention. I am not sure that those findings have been made beyond reasonable doubt. I found many deficiencies in the analysis by the British inquiry and by the Court which raise reasonable doubts as to the involvement of the suspects in the poisoning and whether they were acting as agents of the State.

1. My starting-point relates to the general basis for establishing a procedural obligation and a jurisdictional link. The Court has stated that “in cases where the death occurred under a different jurisdiction from that of the State in respect of which the procedural obligation is said to arise, ... the institution by the investigative or judicial authorities of the respondent State of their own criminal investigation into that death is ... sufficient to establish a jurisdictional link for the purposes of Article 1” (see paragraph 131 of the judgment). In my opinion, there was no jurisdictional link resulting either from the institution of the investigation by the Russian authorities or from any “special feature”. The latter was indicated by the Court in paragraph 134 of the judgment, where it stated that “the fact that the Government retained exclusive jurisdiction over an individual who is accused of a serious human rights violation constitutes a ‘special feature’ of the case establishing the respondent State’s jurisdiction under Article 1 of the Convention”. The constitutional protection from extradition in general cannot serve as a “special feature” because this type of immunity is available to all Russian citizens under the Russian Constitution in line with international standards. Furthermore, the respondent State was prevented from fulfilling the obligation to conduct an effective investigation because the United Kingdom authorities refused to cooperate and to provide access to the investigation files in order to verify even the basic evidence confirming that the victim had been poisoned by polonium and that episodes of primary and secondary contamination had occurred (no public access exists to such materials, which were considered part of the inquiry, and the relevant links do not work).

2. Indeed, the Russian authorities instituted an investigation “into the death of Mr Litvinenko and the attempted murder of Mr Kovtun”. However, the main purpose of the investigation was to identify the perpetrators who attempted to murder Mr Kovtun in circumstances connected with the death of Mr Litvinenko, as both “suspects” were contaminated when they returned to Russia. This brings me to the conclusion that the present case is different from the circumstances of the investigation in Güzelyurtlu and Others v. Cyprus and Turkey ([GC], no. 36925/07, 29 January 2019). As regards Mr Litvinenko himself, the Russian authorities did not have jurisdiction to investigate, since by the time of the event, Mr Litvinenko had changed his citizenship to become a citizen of the United Kingdom, and had even changed his name to Edwin Redwald Carter to establish a link with his new home State and to terminate any civil status connected with Russia.

3. When it appeared that Mr Kovtun and Mr Lugovoy – who both had victim status in the Russian investigation – were considered suspects by the United Kingdom authorities, the Russian investigators asked for the material from the British criminal file (mainly because the Russian investigators were unable to find any material evidence supporting the involvement of the suspects in the killing), but their request was rejected by the United Kingdom authorities. It appears that in accordance with the observations of the Government, the British investigators refused to provide their Russian colleagues with any basic material evidence, including the samples of polonium (to compare with Russian polonium), the forensic medical report on the causes of death and any other material which could have constituted a basis for opening a criminal case against the “suspects”. Furthermore, the Russian investigators were denied assistance and cooperation in order to test any theories other than the main one. This raises doubts from the very beginning as to the impartiality of the British investigation (contrary to the Court’s conclusion in paragraph 110 of the judgment that “there is no reason to doubt the quality of the domestic investigative process, or the independence, fairness and transparency of the inquiry proceedings”).

Source of polonium ‑ 210

4. The Court found that “[t]he use of polonium ‑ 210 strongly indicates that Mr Lugovoy and Mr Kovtun were acting with the support of a State entity which enabled them to procure the poison” (see paragraph 163 of the judgment). However, the results of the inquiry were not so evident. It was not established by the British experts that the polonium discovered by the investigators in the United Kingdom was identical to the polonium produced in Russia. Obviously, the experts had the opportunity to obtain samples from the United States purchaser of the Russian polonium, but they could not confirm that the polonium that was used as a poison had been produced in Russia. Moreover, the inquiry established that there were many reactors and laboratories in Europe, including in the territory of the United Kingdom, where polonium could be produced. The conclusion was reached only because in Russia there was a “programme” for the production of polonium. The Court should not have relied on such general and vague reasoning.

Control of the victim by the suspects

5. The first point of doubt relates to the contamination of means of transport. No contamination was found in the airport bus which carried the suspects when they arrived in London. Since this fact was established by the British investigators, the chairman of the inquiry paid no attention to it. When the Russian investigators found no contamination in the Russian aeroplane which carried the suspects to London, the chairman became very suspicious about the independence and impartiality of the Russian investigation. Such double standards could hardly be acceptable in a judicial examination. No polonium was detected at the airports in either Moscow or London. All these facts may prompt the reasonable theory that the suspects did not carry any poison with them, and that they were targeted on British territory by third parties.

6. The second point of doubt relates to the use of polonium by the suspects. Contamination was detected in rooms in different hotels. The Court paid special attention to this fact and concluded that the suspects had made several attempts to poison the victim (see paragraph 159 of the judgment). According to the inquiry and the Court, a high level of contamination in bathroom bins and sink plugholes pointed to attempts having been made to dispose of the poison by throwing it into a bin or pouring it down the sink. The Court noted (or even concluded) that “the evidence has established, beyond reasonable doubt”, that the suspects “knew that they were using a deadly poison” (see paragraph 160 of the judgment). I am not sure that an international court that had no control over the investigation and inquiry can reach such firm conclusions in a situation where there was a lack of direct evidence to support the subjective intentions of the individuals concerned and thus to establish the subjective element of the crime.

7. I wonder myself whether the suspects could really have been so careless and reckless, since they allegedly knew that they were in possession of polonium, that it was a radioactive chemical element, and that if it was poured down the sink, the traces of the poison would remain detectable for a period of six months. It would have been more prudent to keep the polonium in a container preserving it from detection at airports (this could have been a small glass jar) and to throw it into a rubbish bin on a street far away from the hotel. Rather, those facts could reasonably give rise to a theory that it could have been any third parties who were tracking the movements of the “suspects” and left the contamination in every hotel rooms where they stayed, disposing of the poison in the same places and in the same manner, as a way of planting evidence against the “suspects”.

8. The third point of doubt (deriving from the previous paragraph) relates to the possibility that third parties might have been the real perpetrators. The Court noted that “[t]he public inquiry carefully reviewed and discarded several theories as to the entities which might have wished Mr Litvinenko dead, which left the theory of State involvement as the only tenable one. The inquiry report further identified several reasons why organisations and individuals within the Russian State would have wished to target” the victim (see paragraph 164 of the judgment). However, the British investigation followed by the inquiry paid little attention to theories other than the involvement of agents of the Russian State. They concentrated heavily and disproportionately on that theory. However, the theory of involvement of the British intelligence service, owing to the circumstances in which the material evidence was found in the hotels, could be considered much more tenable than the involvement of Russian agents in the poisoning. The main theory supported and developed by the inquiry becomes even more doubtful since it is not based on any direct evidence, but on the contrary is based on the statements of witnesses who specialise in conspiracy theories undermining the reputation of the Russian authorities (especially the Russian intelligence service) and portraying them as the devil. In contrast, the assessment of the British intelligence service in the inquiry report appears to be completely positive. I am not surprised that a British judge would find the Russian, not British, intelligence service responsible for the poisoning. But again, this raises the questions of double standards, independence and impartiality of the inquiry.

Whether the suspects were agents of the State

9. The Court has reached its conclusion using very general wording (“the indication of their connection with the authorities of the respondent State established a strong prima facie case that, in killing Mr Litvinenko, Mr Lugovoy and Mr Kovtun were acting under the direction or control of the Russian authorities” – see paragraph 165 of the judgment). It appears that only the circumstances of the poisoning were supported by material evidence. However, the involvement of the State in the poisoning was confirmed with the same conviction but without any evidence at all. The inquiry thus transformed from a quasi-criminal investigation to mere conspiracy theories. The Court based its assessment on the reactions of the authorities, which did not carry out an effective investigation and then refused to extradite the suspects and did not seek to deprive one of them of parliamentary immunity. I explained above that extradition is prohibited under the Russian Constitution, and that an effective investigation was not possible without the material evidence held by the United Kingdom authorities and was difficult, or even unrealistic, to achieve on account of the fact that the crime was committed outside the territory of the Russian Federation, and therefore the key investigative steps were outside the control of the Russian authorities.

10. Neither the inquiry nor the Court had any evidence that the suspects were State agents. Instead, the Court shifted that burden of proof to the Russian Government in a situation when there was no prima facie claim. The Court fully relied on the conclusions of the inquiry and paid little attention to the fact that Mr Lugovoy had ended his State service in 1995 and Mr Kovtun in 1992, eleven and fourteen years respectively before the poisoning. Since then, they had been fully engaged in the private sector of the economy. Their motivation to kill cannot be justified by any of the reasons imagined in the report, including revenge. On the contrary, they provided security services to Mr Berezovsky, the victim’s associate and even “friend”, so the suspects had proved their friendship, loyalty and trust on many occasions. I must say that the 1990s were very difficult years for the Russian people, who had to live in a failed State at that time. Organised crime rapidly developed and flourished. The law-enforcement officers were not motivated to continue their service and moved in large numbers to the private sector. This was quite natural, so there were no motives for either of the suspects to return to State service, and especially to agree to kill Mr Litvinenko. The response in the inquiry report (as well as the analysis) was inspired by a conspiracy theory: “there is no such thing as a former KGB man” (see Chapter 9 of the inquiry report).

11. It was not taken into consideration that the suspects had terminated their relations with the State institutions. Instead, all the previous and consequent activities of Mr Lugovoy were aimed at developing private security services in Russia and limiting the State’s influence in this field. Furthermore, he was invited to engage in law-making activities by an opposition political party, and not by the ruling party. He was re-elected as an active member of the party – not simply for the purpose of immunity. Later, he was awarded an honour for his parliamentary activity.

12. The inquiry report and the Court in the present judgment preferred not to develop other theories, including the involvement of British intelligence in the death of the victim. Both Mr Berezovsky and Mr Litvinenko left Russia together at the same time. Obviously, Mr Berezovsky could be considered much more dangerous for the Russian authorities as he intended to play a key role in Russian politics as a shadow director to gain power, money and influence without taking any responsibility. His manner of government distorted democracy in Russia, but instead he obtained refugee status in the United Kingdom as a political opponent of the Russian government. However, Mr Berezovsky was never a target, even if there was allegedly (according to Mr Litvinenko) an attempt to kill him in Russia just before his departure. I think that Mr Berezovsky was not so active against his Russian opponents after settling in London. In contrast, Mr Litvinenko started a new life earning money by selling negative compromising information about Russian intelligence and high-ranking officials. He published a book about explosions at buildings in Moscow, blaming the Russian intelligence service, but this allegation has never been confirmed by any evidence. The inquiry report also presents a large amount of such implausible information provided by various witnesses.

13. It seems that the United Kingdom intelligence service was interested in such information even though it was very far removed from the interests of national security. Indeed, this information would be considered valuable if a different purpose had been pursued, namely to present the Russian authorities as the devil. No doubt the Russian intelligence services were and are considered an adversary by British intelligence. Also, I have no doubt that the relationship between the United Kingdom and American intelligence services is very different in nature from the relationship between the United Kingdom and Russian intelligence services. I presume that the Cold War has never ended for the intelligence services. Mr Churchill declared that cold war many years ago, and no other subsequent Prime Minister has declared officially that the war is over. Therefore, I am not surprised that the British judge found the Russian State responsible, and therefore confirmed the version of events put forward by the victim himself before his death and also provided in the application many years before the inquiry report was issued.

14. It could reasonably be understood that the election of Mr Lugovoy as a member of the national parliament was motivated by the fact that he had become a victim of the Cold War. The fact is that Mr Litvinenko worked for the United Kingdom intelligence service and those of some other countries, and expressed his dissatisfaction that Mr Lugovoy was not proactive in favour of British intelligence. Mr Litvinenko made no secret of the fact that he was an intelligence agent (probably because this would raise the credibility of the information provided by him) and the United Kingdom intelligence service could not tolerate this anymore. These circumstances should lead to the conclusion that many other people who had been targeted by Mr Litvinenko’s attempts to find negative information about them, as well as the United Kingdom intelligence service, could have been interested in getting rid of him, so all those theories should have been a priority for the purposes of the investigation and inquiry. But nothing was done to that end: “I have heard no evidence to support this allegation” (see Chapter 3 of the inquiry report).

15. In such a controversial situation which casts doubt on the impartiality and independence of the British inquiry, the Court should have avoided such direct and unconditional endorsements of the findings of the inquiry report. While the Court may draw inferences from the material available to it, as well as from the authorities’ conduct, when establishing the relevant facts of a case, it is ultimately for the Court to make its own findings and reach its own conclusions on the applicant’s allegations (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 16, ECHR 2012).

16. The main problem in the present case is how the Court assessed the evidence in front of it. It relied entirely on the conclusions of the inquiry report without taking into consideration the level of probability with regard to the responsibility of the State. The Court therefore confirmed that the suspects acted on behalf of and on the instructions of the authorities without any reference to such probability, as though this were an established fact. At the same time the Court concluded that there was a prima facie claim which was not refuted by the Russian Government. Indeed, the Government did not institute a criminal investigation in respect of the “suspects”, they refused to participate in the public inquiry, and they even refused to provide the Russian criminal case file to the Court. That could make the Court suspicious and more confident that there was really a prima facie claim. However, there was nothing to be refuted by the Government as the complaint under the substantive limb of Article 2 was not based on any material evidence. The persons who expressed their opinion about alleged State involvement cannot be considered witnesses from the criminal-law point of view as their “knowledge” was not based on facts, documents or any other material evidence. It was just a theoretical possibility. Therefore, the quality of the claim in the present case is doubtful, in my view, and so I have doubts that there was a prima facie claim in the present case.

17. The inquiry proceedings lacked the guarantees of a fair trial for many reasons. Since the defendants (individuals and officials of the respondent State) were not present in the proceedings, there should have been more scrutiny to ensure the effectiveness of the defence. However, the legal assistance was not effective: counsel for the defence did not raise any doubts such as those expressed above in the present opinion; nor did he examine the prosecution witnesses, who were left free to provide absolutely unbelievable statements and frivolous allegations. The inquiry chairman expressed a positive attitude in relation to the British investigation and a negative one in relation to the Russian investigation and its efforts to promote alternative scenarios. The assessment of evidence by the inquiry chairman was one-sided and was deficient in ensuring a fair balance and equality of arms. Obviously, the principles of a fair trial were not respected in the inquiry proceedings, but the Court did not take that into account while assessing the evidence in the present case.

18. Contrary to the essential elements of a fair trial (see Čepek v. the Czech Republic , no. 9815/10, § 48, 5 September 2013, and Alexe v. Romania , no. 66522/09, § 37, 3 May 2016), the Court considered most of the allegations and probabilities to be established facts. The inquiry started with the question of criminal charges against the individuals concerned but ended with the responsibility of the Russian authorities, an outcome which the respondent State would not have been able to anticipate. I consider that the investigating authorities of both States did not engage in full-scale cooperation with each other (especially with regard to the investigation of alternative scenarios); the United Kingdom authorities did not question any defence witnesses; counsel for the defence performed his functions purely formally during the inquiry; the link between the suspects and the authorities was not established; and no other actions of the Russian authorities can be interpreted as the State praising the suspects for the killing. Although the system of presumptions developed in the Court’s case-law suggests that the Court relies upon formal truth and the activity of the parties alone, all the factors mentioned above should not have allowed the Court directly, without any reservations, to accept as established those factual allegations that were made in the inquiry report and were not rebutted by the Russian Government.

[1] http://www.rusemb.org.uk/fnapr/5400 . Last accessed on the date of the judgment.