1. Introduction
1. The present report is based
on a motion for a resolution that was tabled on 28 January 2020
and referred to the Committee on Legal Affairs and Human Rights
for report on 6 March 2020.
The Committee appointed me as rapporteur
at its meeting on 29 June 2020. The motion for a resolution recalled
that the Memorial Human Rights Centre, one of the Russian Federation’s
most respected non-governmental organisations, had estimated that
there were more than 300 political prisoners in the Russian Federation
– a six-fold increase since 2015, including journalists, civil society
activists, human rights advocates, participants in peaceful demonstrations,
adherents of prohibited religious groups and members of “undesirable”
organisations”.
2. During the preparation of the report, the committee held three
hearings with experts. On 8 December 2020, the hearing involved
Mr Sergey Davidis, head of the “Support of Political Prisoners”
programme of Memorial Human Rights Centre, Moscow, Mr Tony Brace,
European Association of Jehovah’s Witnesses, and Ms Karinna Moskalenko,
Director of the International Protection Centre, Moscow. Another
hearing on 22 March 2021 involved Mr Mikhail Khodorkovsky, leader
of the NGO Open Russia Foundation and former “prisoner of conscience”
according to Amnesty International, and Professor Bill Bowring,
Professor of Law at Birkbeck College, University of London. Finally,
on 4 April 2022, the committee heard Mr Vladimir Kara-Murza, a Russian
politician and historian, founding chairman of the Boris Nemtsov
Foundation for Freedom, Mr Vladimir Milov, former deputy minister
of energy and long-time advisor to Mr Alexei Navalny, and Ms Vera Chelisheva,
journalist and head of the judicial department of
Novaya Gazeta. Although the committee
had authorised me to carry out a fact-finding visit to the Russian
Federation, the lack of co-operation on behalf of the Russian authorities
rendered the visit impossible.
In
fact, the Russian delegation at the time repeatedly declared that
they had no intention on co-operating with me during the preparation
of my report in direct contradiction to their statutory obligations.
The chairperson of the delegation at the time, Mr Petr Tolstoi refused my
invitation to send a representative of the Russian authorities to
present their viewpoint for both hearings, choosing instead to attack
my credibility as rapporteur with unfounded claims of violations
of the code of conduct for rapporteurs in letters addressed to the
chairperson of the committee. Notwithstanding their lack of co-operation,
the findings of this report are based on a thorough review of the
information provided by the experts and of the cases examined by
various Council of Europe bodies.
3. Despite the expulsion of the Russian Federation from the Council
of Europe in accordance with Article 8 of the Statute of the Council
of Europe (ETS No. 1) on 16 March 2022 (CM/Res(2022)2), the Parliamentary Assembly
can – and should – continue its work related to the human rights
situation in the Russian Federation. In its
Opinion 300 (2022) “Consequences of the Russian Federation’s aggression
against Ukraine”, the Assembly considered that in the event that
the Russian Federation ceased to be a member of the Organisation, the
Council of Europe should envisage initiatives to be able to continue
to support and engage with human rights defenders, democratic forces,
free media and independent civil society in the Russian Federation.
This was reiterated in
Resolution 2433 (2022), in which the Assembly resolved to intensify its engagement
with Russian civil society, human rights defenders, independent
journalists, academia, and democratic forces respecting the values
and principles of the Organisation, including the territorial integrity
of sovereign member States. While the monitoring procedure is strictly
reserved for member States and has therefore been formally terminated
in respect of the Russian Federation (As/Mon(2022)09), the Committee
on Legal Affairs and Human Rights has the competence to consider
issues concerning the state of human rights and the rule of law
in Europe, including in European non-member States. In addition,
it is also important to recall that the European Convention on Human
Rights (ETS No. 5) is still applicable in the Russian Federation
until 16 September 2022, and many of the situations covered in this
report may give rise to continuing violations of some of its provisions (notably
the right to liberty and security provided by Article 5 of the Convention).
Some also result from the persistent failure by the Russian authorities
to execute specific judgments of the European Court of Human Rights,
which are and will remain binding beyond that date on the Russian
Federation, in accordance with Articles 46.1 and 58.2 of the Convention.
2. Cases and situations already examined
within the Parliamentary Assembly
4. The Assembly, its committees
and its rapporteurs have in recent years examined numerous issues
of relevance to the present report, including the following, presented
in chronological order.
5. In February 2014, the Monitoring Committee’s co-rapporteurs
on Russia, Mr Andreas Gross (Switzerland, SOC) and Ms Theodora Bakoyannis
(Greece, EPP/CD), expressed their deep concern at prison sentences
announced by the Moscow Court for demonstrators involved in the
Bolotnaya Square events of 6 May 2012. About 650 demonstrators had
been detained following protests in Moscow’s Bolotnaya Square a day
before Mr Putin was due to be sworn in as President. Criminal proceedings
were subsequently initiated against 28 persons. Seven activists
from the Bolotnaya Square events received prison terms of between 2.5 and
4 years and had remained in custody since the events. The co-rapporteurs
noted that the sentences were “very high and disproportionate,”
adding that “procedural shortcomings, as well as long pre-trial
detention, may raise justified suspicions about politically motivated
justice.”
(The Court has since issued
a series of judgments finding violations in relation to these events
– see further below.)
6. In his 2014 report for the Monitoring Committee entitled “Reconsideration
on substantive grounds of the previously ratified credentials of
the Russian delegation”, Mr Stefan Schennach (Austria, SOC) noted
that “The detention of hundreds of anti-war protesters on 1 and
2 March 2014 was another manifestation of the increasing crackdown
on the freedom of expression and assembly in Russia. On 3 March
2014, a Moscow court ordered the detention of two protesters for
five days on administrative charges. Amnesty International considered
them to be ‘prisoners of conscience’.”
7. In his 2015 report entitled “Challenge, on substantive grounds,
of the still unratified credentials of the delegation of the Russian
Federation”, Mr Schennach noted that “A number of measures have
been taken to increase the Russian authorities’ ability to control
public discourse and freedom to demonstrate. Laws were passed to
criminalise non-authorised street protests, setting high penalties
including enormous fines, forced labour and prison sentences (up
to five years). Opposition leaders, such as Alexei Navalny, were
put under house arrest or sent to prison. Such measures are clear
attempts to deter participation in demonstrations and open political
debate.”
8. Later that year, in his report entitled “Consideration of
the annulment of the previously ratified credentials of the Russian
delegation (follow-up to paragraph 16 of
Resolution 2034 (2015)”, Mr Schennach noted that “The reported harassment of
the opposition can also be seen as an effort to destabilise attempts
to constitute a united political alternative in the run-up to the
forthcoming 2015 and 2016 elections. On 17 February 2015, Russian
opposition leader Alexei Navalny was sentenced to 15 days in prison
for breaching a law that restricts demonstrations, barring him from
attending a rally planned on 1 March 2015.”
(The Court has since issued a judgment
finding violations in relation to these events – see further below.)
9. In August 2015, Ms Anne Brasseur (Luxembourg, ALDE), President
of the Assembly, declared that “The sentencing of Oleg Sentsov
and
Oleksandr Kolchenko
on
charges of terrorism, respectively to 20 and 10 years in prison,
appears to be manifestly excessive and raises concerns about respect
for the standards of the European Convention on Human Rights in
the legal proceedings against them, especially in the context of the
deterioration of the human rights situation in Crimea since its
illegal annexation by the Russian Federation”.
She reiterated
her call on the Russian authorities “to live up to their commitments
as a member State of the Council of Europe and release all persons
illegally detained following the annexation of Crimea.”
10. In
Resolution 2112
(2016) “The humanitarian concerns with regard to people captured
during the war in Ukraine”, the Assembly expressed alarm at reports
of “11 Ukrainian prisoners reportedly being detained by the Russian
authorities in violation of international law on fabricated charges.
In addition, at least 10 Ukrainian citizens are being held in Crimea
on politically motivated charges.” The Assembly considered that
“The most flagrant example is the case of a member of the Parliamentary
Assembly, Ms Nadiia Savchenko, who was forcibly taken to the Russian
Federation and has been illegally held in custody since June 2014
despite,
inter alia, her enjoying
immunity under Article 40.
a of
the Statute of the Council of Europe and the General Agreement on
Privileges and Immunities of the Council of Europe and its Additional
Protocol, to which the Russian Federation is a Party. Following
an unfair trial, the Russian court sentenced Ms Savchenko to 22 years in
prison accusing her of the murder of two Russian journalists.” Ms Savchenko
was released in May 2016 as part of a prisoner exchange.
11. In
Resolution 2116
(2016) “The urgent need to prevent human rights violations
during peaceful protests”, the Assembly noted “with concern the
recent legal restrictions placed on the right to freedom of assembly
[…] in the Russian Federation, with an amendment to the law on public
gatherings which permits the detention of any person participating
in an unauthorised public assembly.” In the accompanying report
of our committee, the rapporteur, Ms Nellija Devaja (North Macedonia,
SOC), noted that “A peaceful activist, Idlar Dadin, was sentenced
in December 2015 to three years in prison for breaking [the amended
law on public gatherings]. In 2015, ‘more than 640 people were detained
and accused of participation in unauthorized gatherings … for peacefully
protesting outside the court building where the verdicts of Bolotnaya
case defendants were being heard’.”
12. In a 2016 “Information note on the functioning of democratic
institutions in the Russian Federation” presented to the Monitoring
Committee, the co-rapporteurs, Ms Bakoyannis and Ms Liliane Maury
Pasquier (Switzerland, SOC), reported on politically related detentions
when examining the democratic environment. In particular, they noted
that “On 7 May 2015, the Moscow court sentenced to administrative
detention three opposition activists (Aleksandr Ryklin, Sergei Sharov-Delaunay
and Irina Kalmykova) who had participated in a peaceful protest
in Bolotnaya Square on 6 May 2015 to mark the third anniversary
of a violent police crackdown on opposition protesters there in
2012. Amnesty International considers that they were imprisoned solely
for peacefully exercising their right to freedom of expression and
are prisoners of conscience. Amnesty also denounced violations of
the right to fair trial in all three hearings.”
(The Court has
since issued a judgment finding violations in relation to these
events – see further below.) As regards politically related detentions
and freedom of assembly, the co-rapporteurs noted that “Permission
to hold street rallies has often been denied or only granted in
non-central locations, and violation of the bans have resulted into
steep fines and detention. These developments have been a deterrent
to the exercise of the right to assembly.” They also noted that
the legal framework had “deteriorated with the adoption of the recently
signed package of anti-extremism amendments (known as the
Yarovaya Law) based on which encouraging
people to take part in ‘mass disturbances’ became a crime punishable
by five to ten years in prison. The
Yarovaya Law
also gives Russian law enforcement agencies additional powers and
places further limits on the rights to freedom of expression, association
and assembly. It also contains restrictions on religious practices
and bans most ‘missionary activities’ including proselytising, preaching,
praying, or disseminating religious materials outside of ‘specially
designated places’. In this respect they were informed about Jehovah’s
Witnesses being prosecuted for extremist activity for what seems
to be merely attending religious services and practising their faith.”
13. In
Resolution 2141
(2017) “Attacks against journalists and media freedom in Europe”,
the Assembly called on the Russian authorities to drop criminal
charges for “separatism” and related offences against the Ukrainian
journalists Anna Andrievska, Natalya Kokorina and Mykola Semena
for their reports about the illegal occupation and annexation of
the Crimean Peninsula by the Russian Federation; and to release
Roman Sushchenko, a correspondent for the Ukrainian national information
agency Ukrinform in France since 2010, who had been detained in
Moscow on charges of “espionage” since 30 September 2016.
14. In March 2017, the Monitoring Committee’s co-rapporteurs on
Russia, Ms Bakoyannis and Ms Maury Pasquier expressed their deep
concern at the arrest and detention of hundreds of protesters across
the Russian Federation following country-wide anti-corruption protests.
They expressed particular concern at the detention and conviction
of Alexei Navalny. In that context they recalled that according
to the European Court of Human Rights itself, there was reason for
concern that previous legal action against Mr Navalny was politically
motivated.
15. On 11 January 2018, Mr Egidijus Vareikis (Lithuania, EPP/CD),
rapporteur on “Human rights defenders in Council of Europe member
States”, and Mr Frank Schwabe (Germany, SOC), rapporteur on “The
continuing need to restore human rights and the rule of law in the
North Caucasus region”, expressed serious concern at the arrest
by the Chechen authorities of Oyub Titiev, a prominent human rights
defender and head of the Memorial Human Rights Centre in the Chechen
Republic (see also below). They added that “His arrest might have
a chilling effect on the work of Memorial, a leading human rights
organisation in Russia”.
16. In
Resolution 2230
(2018) “Persecution of LGBTI people in the Chechen Republic”,
the Assembly noted reports of “cases of abduction, arbitrary detention
and torture of men presumed to be gay, with the direct involvement
of Chechen law-enforcement officials on the orders of top-level
Chechen authorities. This campaign of persecution unfolded against
the backdrop of serious, systematic and widespread discrimination and
harassment against LGBTI people in the Chechen Republic.”
17. In
Resolution 2231
(2018) “Ukrainian citizens detained as political prisoners
by the Russian Federation”, the Assembly noted that 70 or more Ukrainian
citizens, “widely considered to be political prisoners”, were detained
in Crimea or the Russian Federation “on politically motivated or
fabricated charges. As examples, [the Assembly considered] that
the cases of Mr Oleh [Oleg] Sentsov, Mr Volodymyr Balukh and Mr Pavlo
Hryb in particular meet the Assembly’s definition of political prisoners,
as set out in its
Resolution
1900 (2012) on the definition of political prisoner.” On that basis,
the Assembly called on the Russian Federation to “release without further
delay all Ukrainians detained in the Russian Federation and in Crimea
on politically motivated or fabricated charges”. Our committee’s
rapporteur, Mr Emanuelis Zingeris (Lithuania, EPP/CD), provided extensive
detail on the cases of Mr Sentsov, Mr Balukh and Mr Hryb in his
report.
18. In February 2019, the Monitoring Committee’s co-rapporteurs
on Russia, Mr José Ângelo Correia (Portugal, EPP/CD) and Ms Angela
Smith (United Kingdom, SOC), expressed serious concern at the conviction
and sentencing to six years imprisonment, by the Zheleznodorozhniy
District Court, of Dennis Christensen for “organising the activity
of an extremist organisation” on the grounds that he is a practising Jehovah’s
Witness. Recalling that the European Court of Human Rights had previously
ruled in favour of Jehovah’s Witnesses’ right to worship without
interference from the Russian authorities and reiterating the Assembly’s
concerns about the abuse and arbitrary application of the so-called
“extremism law” by the Russian authorities, they hoped that Mr Christensen’s
conviction would be overturned without delay by the appeals court
and called on the Russian authorities to release him pending an
appeal.
19. In February 2019, the General Rapporteur on media freedom
and the safety of journalists, Lord George Foulkes (United Kingdom,
SOC) expressed concern over police actions against Russian journalist
Svetlana Prokopyeva (see also below). Police had detained and interrogated
the journalist over comments regarding a suicide bombing broadcast
in 2018, which – according to the Russian authorities – had amounted
to “publicly justifying terrorism”. He called on the Russian authorities
to drop the charges brought against the journalist.
Later that year,
he called on the Russian authorities to immediately release investigative
journalist Ivan Golunov (well known for his work on corruption),
who had been arrested on “drug-dealing” charges that he claimed
were fabricated.
20. In March 2019, Frank Schwabe, rapporteur on “The continuing
need to restore human rights and the rule of law in the North Caucasus
region”, and Raphaël Comte (Switzerland, ALDE), General Rapporteur
on the situation of human rights defenders, reacted to the sentencing
by a court in the Chechen Republic of Oyub Titiev, human rights
activist, head of the regional branch of the NGO Memorial, and 2018
Václav Havel Human Rights Prize winner, to four years’ imprisonment
in a penal colony. According to Mr Schwabe, “the case against him
gave every impression of having been fabricated in retaliation for
his exposure of appalling human rights violations, his trial was
blatantly unfair and the sentence is absurdly disproportionate to
the alleged offence.”
21. In
Resolution 2375
(2021) “The arrest and detention of Alexei Navalny in January
2021”, the Assembly examined the situation of the Russian opposition
politician after his return to Russian Federation from Germany following
treatment for poisoning. He had been arrested on arrival under a
warrant issued for having breached the terms of a suspended sentence
passed in 2014 in the so-called Yves Rocher case, including failure
to report to the police while he was in intensive treatment and
rehabilitation in Germany. The Russian courts had then converted
the suspended sentence into a sentence of two years and eight months
in prison. Taking into consideration the 2017 judgment of the European
Court of Human Rights (see below), the Court’s interim measure of
February 2021 requiring his release, and the continuing discriminatory
and health-threatening conditions of his detention, the Assembly
called on the Russian Federation to release Mr Navalny immediately.
Later
in 2021, Lilia Chanysheva, former head of a regional branch of Navalny’
organisation, was also detained and is now prosecuted for the creation
of an “extremist” organisation.
22. In
Resolution 2387
(2021) “Human rights violations committed against Crimean Tatars
in Crimea”, the Assembly condemned the high number of arbitrary
arrests and unfounded prosecutions and convictions of Crimean Tatars
for political reasons, on the basis of false accusations related
to extremism or terrorism, including allegations of membership of
Muslim groups and opposition to the current regime in Crimea. It
also expressed its concern about the restrictions faced by the Crimean
Tatars with regard to freedom of expression and peaceful assembly,
and freedom of thought, conscience and religion, including the prosecution
of individual peaceful protesters. The Assembly urged the Russian
authorities to release any person unlawfully detained or imprisoned
due to the abusive application of Russian law in Crimea, including
for political reasons, as well as to ensure dignified conditions
of detention. For more detailed information concerning arbitrary
arrests and prosecutions against Crimean Tatars, please refer to
Doc. 15305.
23. In July 2021, in the exercise of my mandate as rapporteur,
I expressed concern at news reports that Alexey Pichugin, recognised
by human rights groups as a political prisoner under the criteria
set out in
Resolution
1900 (2012), was being held incommunicado in Moscow’s main FSB prison
at Lefortovo. Mr Pichugin has been imprisoned since 2003 despite
two judgments of the European Court of Human Rights finding violations
of his right to a fair trial under Article 6 of the Convention (see
paragraphs 31-32 below); and despite repeated calls by the Committee
of Ministers of the Council of Europe to the Russian authorities
to take “measures as soon as possible to ensure his release”.
24. In an “Information note on the situation of human rights defenders
in Council of Europe member States” published in February 2022 (AS/Jur(2022)
01rev), the then General Rapporteur on the situation of human rights defenders,
Ms Alexandra Louis (France, ALDE), referred to the following detentions,
prosecutions and/or convictions: the arrest of over 3 650 pro-Navalny
protesters in January 2021; the convictions of Anastasia Shevchenko
(former
regional co-ordinator of Open Russia), Iana Antonova (former member
of Open Russia) and Igor Kalyapin (human rights defender) and the
pre-trial detention of Andrei Pivovarov
(former Executive Director
of Open Russia) under the legislation on “undesirable organisations”;
the sentencing of Yuri Dmitriev
(regional
head of Memorial in Karelia) to 15 years imprisonment on trumped-up
charges, after having been acquitted of similar charges earlier;
the administrative detention of Sergei Davidis, member of Memorial
Human Rights Centre; the convictions under terrorist-related charges
of Crimean Tatar defenders such as Server Mustafayev and Emir Usein
Kuku and the detention of five Crimean Tatar leaders, including
Nariman Dzhelyal, the first deputy head of the Mejlis of the Crimean
Tatar People.
25. Since the start of the unlawful and unprovoked military aggression
against Ukraine on 24 February 2022, the Assembly, its committees
and its rapporteurs have continued to react to the increasing repression
of political opponents and civil society activists in the Russian
Federation, in particular persons opposing the war.
26. On 10 March 2022, in my capacity as General Rapporteur on
the situation of human rights defenders, I expressed deep concern
at the ongoing crackdown on Russian civil society amid Russia’s
ongoing aggression against Ukraine. I strongly condemned the recent
reprisals against two prominent human rights defenders – Oleg Orlov,
a member of the Executive Board of the Human Rights Centre Memorial,
and Svetlana Gannushkina, chairperson of the Civic Assistance Committee,
an organisation providing legal assistance to refugees and migrants.
The two human rights defenders had been arrested on 6 March for
more than ten hours, after attending a protest against the war in
Ukraine, and they are now subject to criminal prosecution. Since
the beginning of the war, more than 13 000 peaceful anti-war protesters
have been arrested in 147 cities across Russian Federation, some
of them were beaten or even tortured by the police according to
independent media reports.
27. In its
Opinion
300 (2022) of 15 March 2022, the Assembly unanimously condemned
the intensifying crackdown on civil society and the harsh repression
of peaceful anti-war protests in Russia.
28. On 22 March 2022, Mr Jacques Maire (France, ALDE) reacted
to an additional nine-year prison sentence for Alexei Navalny for
“fraud” and “offending a court”, that he may have to serve in a
harsh prison colony. Mr Maire called on the Russian authorities
to release Mr Navalny in accordance with the decisions of the European
Court of Human Rights and meanwhile to respect his right to conditions
of detention respecting his human dignity.
29. On 27 April 2022, the Chairperson of our committee, Mr Damien
Cottier (Switzerland, ALDE) condemned the arbitrary arrest of Vladimir
Kara-Murza, and called for his immediate release. Mr Kara-Murza had
addressed our committee as an expert some weeks before, in the context
of the preparation of the present report. He is now imprisoned and
prosecuted for allegedly spreading “deliberate false information”
about the Russian army, under a recently promulgated law that imposes
a penalty of up to 15 years in prison for such crime.
These proceedings were preceded by
his arrest and sentence to 15 days of administrative detention, that
I had denounced on 14 April 2022.
3. Judgments of the European Court of
Human Rights and their implementation
30. There have been a number of
judgments of the European Court of Human Rights involving arbitrary detention
and/or violation of the right to a fair trial of critics and opponents
of the government and persons associated with them. In some of these
judgments the Court has also found violations of Article 18 of the Convention,
which is a complementary clause which prohibits Contracting States
from restricting the rights and freedoms enshrined in the Convention
for purposes not prescribed by the Convention itself. The object
and purpose of Article 18 are to prohibit the misuse of power.
31. In
Pichugin v. Russia,
the applicant had
been the head of security of the Yukos oil company.
In June 2003, he was arrested
on suspicion of murder and detained under a series of court orders
until his conviction in March 2005, when he was sentenced to 20
years imprisonment. He complained to the Court of numerous violations
of his rights. The Court found that his right to trial within a
reasonable time or to release pending trial (article 5(3) of the
Convention) had been violated, since the decisions to extend his
pre-trial detention relied essentially on the gravity of the charges,
using stereotypical formulae without addressing specific facts or considering
alternative preventive measures: they were thus not based on “sufficient”
grounds. The Court also found violations of the applicant’s right
to a fair trial, since both the trial and appeal were held in secret,
and the trial judge refused to allow the defence to challenge the
credibility of the crucial prosecution witness and allowed that
witness to refuse to answer certain questions from the defence (Articles
6(1) and 6(3)(d)). The Court concluded that “the most appropriate
form of redress would, in principle, be trial
de
novo or the reopening of the proceedings”, noting that
“Article 413 of the Russian Code of Criminal Procedure provides
that criminal proceedings may be reopened if the Court finds a violation
of the Convention”.
32. In a second case,
Mr Pichugin,
whilst in prison, was charged with further counts of murder, for
which he was ultimately convicted and sentenced to life imprisonment.
The Court found violations of the applicant’s right to a fair trial
on account of the trial judge’s refusal to allow the defence to
present certain expert evidence, and media reporting of statements
by the Deputy Prosecutor General and lead investigator that breached
the presumption of innocence. The Court again stated that “the most
appropriate form of redress would, in principle, be trial
de novo or the reopening of the
proceedings”.
33. Given the unfairness of all of the trials in which he was
convicted, Mr Pichugin is widely considered to be a political prisoner
due to his close association with Mr Khodorkovsky.
It should be noted that despite the Court’s
statements on appropriate redress, Mr Pichugin is still serving
his life sentence in a high-security prison. The Russian Supreme
Court has examined both cases and concluded that the violations
found by the European Court of Human Rights did not affect the outcome
of the criminal proceedings or the lawfulness, reasonableness and
fairness of the sentences, and did not warrant their quashing or
the opening of new proceedings. Mr Pichugin’s requests for a presidential
pardon were rejected on three occasions, for the last time on 4
June 2020. At the Human Rights (DH) meeting on 9 March 2022, the
Committee of Ministers (supervising the execution of these judgments
under Article 46.2 of the Convention) recalled that the judicial reopening
of the domestic criminal proceedings had not ensured redress for
the applicant, since his convictions had been upheld without providing
a full analysis of the evidence against him and the safety of the
conviction in the light of the findings of the Court. It exhorted
again the Russian authorities to find, as a matter of urgency, alternative
venues to secure redress to the applicant, including by considering
the adoption of any other measures to ensure his release.
34. In
Nemtsov v. Russia,
the applicant, a leading opposition
politician who was shot dead in front of the Kremlin in 2015,
had
been arrested following a demonstration on 31 December 2010, then
detained in police custody until 2 January 2011, when he was taken
to court and sentenced to 15 days’ administrative detention. The
Court found violations of his freedom of assembly, right to a fair
trial, right to liberty and security, the prohibition on inhuman
and degrading treatment in relation to the police custody. Having
“found above that the applicant had been arrested, detained and
convicted of an administrative offence arbitrarily and unlawfully and that
this had had an effect of preventing or discouraging him and others
from participating in protest rallies and engaging actively in opposition
politics”, the Court considered that no separate issue arose under
article 18 and did not examine the issue further.
35. The Court has issued a number of judgments and decisions in
cases involving detention brought by Aleksey Navalny, a lawyer,
anti-corruption activist and political opposition leader:
- In Navalnyy
and Yashin v. Russia, the applicants had
been arrested, detained in police custody, and sentenced to 15 days’
administrative detention for participating in a “spontaneous march”
following an authorised demonstration in 2011. The Court found a
violation of article 11 (freedom of assembly), noting that the authorities
had expressly acknowledged that the applicants had been punished
for holding a spontaneous peaceful demonstration and chanting anti-government
slogans. The Court also found violations of the right to a fair
trial in relation to the administrative proceedings, and the right
to liberty and security and the prohibition on inhuman and degrading
treatment in relation to the police custody. In view of its finding
that the applicants’ arbitrary arrest, detention and conviction
“had the effect of preventing and discouraging them and others from
participating in protest rallies and engaging actively in opposition
politics”, the Court declined to examine the applicants’ complaints
under article 18.
- Navalnyy v. Russia covered
a total of seven incidents in 2012 and 2014 when, in connection
with public gatherings of opposition activists, the applicant was
arrested, detained in police custody and sentenced to either administrative
fines or administrative detention. The Court found violations of
the applicant’s right to liberty and security on all seven occasions,
of his right to a fair trial on six of them, and of his right to
freedom of assembly on all seven. The Court found it “established
beyond reasonable doubt that the restrictions imposed on the applicant
in the fifth and the sixth episodes pursued an ulterior purpose
within the meaning of Article 18 of the Convention, namely to suppress
that political pluralism which forms part of “effective political
democracy” governed by “the rule of law”, both being concepts to which
the Preamble to the Convention refers”. The Court therefore found
a violation of Article 18 in connection with Articles 5 and 11.
It relied on the converging contextual evidence that at the material time
the authorities were becoming increasingly severe in their response
to the conduct of the applicant, in the light of his position as
opposition leader, and vis-à-vis other political activists, and
on the broader context of the Russian authorities’ attempts to bring
the opposition’s political activity under control.
- In Navalnyy and Ofitserov v.
Russia, the
applicants had been convicted of fraud related offences and sentenced
to five and four years imprisonment respectively, terms that were
suspended on an undertaking not to change their place of residence.
The Court found that “the acts described as criminal fell entirely
outside the scope of the provision under which the applicants were
convicted… In other words, the criminal law was arbitrarily and
unforeseeably construed to the detriment of the applicants, leading
to a manifestly unreasonable outcome of the trial.” The domestic
courts had “failed, by a long margin, to ensure a fair hearing in
the applicants’ criminal case, … suggesting that they did not even
care about appearances. It is noteworthy that the courts dismissed
without examination the applicants’ allegations of political persecution
which were at least arguable”. “It is obvious for the Court, as
it must also have been for the domestic courts, that there had been
a link between the first applicant’s public activities and the Investigative
Committee’s decision to press charges against him. … Having omitted
to address these allegations the courts have themselves heightened
the concerns that the real reason for the applicants’ prosecution
and conviction was a political one.” The criminal proceedings against
the applicants were found by the Court to have breached their right
to a fair hearing under Article 6 of the Convention.
- In Navalnyye v. Russia, the applicant and his brother had
been convicted of money laundering and fraud (Yves Rocher case),
and sentenced to three and a half years imprisonment. Mr Navalny’s sentence
was suspended. The Court found in particular that the Russian courts
had extensively and unforeseeably construed to their detriment the
offence of commercial fraud, and that the decisions had been arbitrary
and manifestly unreasonable. The Court found violations of Articles
7 (no punishment without law) and 6(1) (right to a fair trial).
- In Navalnyy v. Russia (No.
2), the applicant
had been placed under house arrest for over ten months with restrictions
on communication, correspondence and use of internet, for reasons
unrelated to the requirements of the criminal investigation. The
Court found violations of the applicant’s right to liberty and security
and of his right to freedom of expression. It also found a violation
of Article 18 in conjunction with Article 5, on the grounds that
the restrictions on his right to liberty had pursued the same aim
as in the previous Navalnyy case
(Grand Chamber judgment), namely to suppress political pluralism.
- In Navalnyy and Gunko v. Russia, the applicants had been
arrested, detained in police custody and convicted for an administrative
offence in relation to their participation in an authorised demonstration
at the Bolotnaya Square on 6 May 2012. The Court found a violation
of Article 3 (prohibition of inhuman and degrading treatment), noting
that the recourse to physical force during the arrest of the first
applicant had affected his human dignity. It also found a violation
of the right to liberty, considering that the applicants’ administrative
detention for nearly twenty and eighteen hours respectively had
been unjustified and arbitrary. The Court further found a violation
of the right to a fair trial and of the right to freedom of peaceful
assembly. It also noted that the first applicants’ arrest, detention
and administrative conviction “had a chilling effect, discouraging
[them] and others from participating in protest rallies or from
engaging actively in opposition politics”. In view of these findings,
the Court considered it unnecessary to examine whether Article 18
had been infringed.
- In the context of a new application Navalnyy
v. Russia, concerning
Mr Navalny’s detention upon his return from Germany in January 2021,
the Court granted on 16 February 2021 an interim measure under Rule
39 of the Rules of the Court and asked the Russian Government to
release him immediately. It had regard to the nature and extent
of risk to the applicant’s life, seen in the light of the overall
circumstances of the applicant’s detention.
36. At the DH meeting of 7-9 June 2021, the Committee of Ministers
recalled the Court’s findings under Article 18 in some of the
Navalnyy cases and called on the
authorities to take action as a matter of urgency with a view to
ensuring that the applicant is able without hindrance to exercise
his rights to freedom of peaceful assembly and freedom of expression
and to end the “sequence and pattern” of restrictions imposed on
him with the ulterior purpose of suppressing political pluralism.
At the DH meeting of 9 March 2022, the Committee of Ministers deeply
deplored that despite its numerous calls, Mr Navalny remined in
detention and exhorted again the authorities to take all possible
steps to assure his immediate release and to quash the convictions impugned
by the relevant judgments of the Court.
37. In a series of judgments concerning
Garri
Kasparov, former World Chess Champion and political activist, the
Court found violations of the right to liberty and security, the
right to a fair trial, and freedom of assembly. The first case concerned
the applicant’s arrest for participating in an unauthorised yet
peaceful demonstration. The second case concerned the applicant’s
five hours’ detention by airport police when travelling to Samara (Russia)
to take part in an opposition rally. The third case involved his
arrest (and that of another activist) during a protest rally and
their ensuing administrative detention. Although the Court did not
find a violation of Article 18 in any of these judgments, it stated
in the last one that “the measures also had the serious potential
to deter other opposition supporters and the public at large from
attending demonstrations and, more generally, from participating
in open political debate. The chilling effect of the sanctions was
further amplified by the fact that they targeted the first applicant,
a well-known public figure, whose deprivation of liberty was bound
to attract wide media coverage”.
38. In
Frumkin v. Russia,
the applicant had
been arrested in 2012 during dispersal of a rally at Bolotnaya Square
in Moscow, detained for at least thirty-six hours in a police station,
then sentenced to fifteen days administrative detention. The Court
found that his freedom of association and assembly under article
11 of the Convention had been violated on account of his arrest
and detention. If found that his right to liberty and security under
article 5 had been violated on account of the lack of reasons and
legal grounds for remanding him in custody prior to the administrative
hearing. It also found that that his right to a fair trial under
article 6 had been violated since the administrative court based
its decision on untested prosecution evidence, refusing to call
police officers for cross-examination or accept additional evidence
put forward by the applicant. As to the applicant’s complaint of
a violation of article 18, the Court noted that his arrest, detention
and conviction “had the effect of preventing and discouraging him
and others from participating in protest rallies and engaging actively
in opposition politics”. On this basis, it considered it unnecessary
to examine whether article 18 had been violated.
39. In
Yaroslav Belousov v. Russia,
the applicant had been arrested,
held in lengthy pre-trial detention, tried, convicted and sentenced
to a total of two years and three months’ imprisonment in connection
with his participation in the 2012 Bolotnaya Square demonstrations
(see further above). The Court found violations of the prohibition
on inhuman and degrading treatment, the right to liberty and security,
the right to a fair trial and freedom of assembly. Noting that “the
applicant’s criminal conviction was not necessary in a democratic
society and that this had had an effect of preventing or discouraging
him and others from participating in protest rallies and engaging
actively in opposition politics”, the Court considered that no separate
issue was raised under article 18 and so it was not necessary to
examine whether it had been violated. The Court issued similar judgments
also in the cases of
Barabanov v. Russia,
Polikhovich v. Russia,
Stepan Zimin v. Russia,
Lutskevich v. Russia,
Razvozzhayev
v. Russia and Ukraine and Udaltsov v. Russia, Gushchin and Gaskarov v. Russia, and Nepomnyashchikh v. Russia.
40. In
Mariya Alekhina and Others v.
Russia, the applicants, members of the Russian feminist
punk band Pussy Riot, had been convicted of hooliganism motivated
by religious hatred and sentenced to two years imprisonment, for
performing a political song in Moscow’s Christ the Saviour Cathedral
in 2012. The Court found violations of the prohibition of inhuman
and degrading treatment (conditions of the applicants’ transport to
and from the trial hearings and in the courtroom), the right to
liberty and security, the right to a fair trial, and freedom of
expression. As regards freedom of expression, the Court considered
that the criminal prosecution and conviction for their performance
had not been necessary in a democratic society.
41. In
Ryklin and Sharov v. Russia,
the applicants
had been arrested and sentenced to ten days’ administrative detention
in 2015, following public protests to mark the third anniversary
of the 2012 Bolotnaya Square demonstration. The Court found violations
of their freedom of expression and right to a fair trial.
The Court
recalled that it had “consistently found a violation of Article
11 of the Convention in a situation in which the organisers of or participants in a
public gathering are arrested and convicted of administrative offences
for the sole reason that the Russian State authorities perceive
their assembly to be unauthorised”. It also recalled that it had
“previously found that the lack of a prosecuting party in the context
of oral hearings resulting in the determination of administrative
charges constitutes a serious shortcoming in breach of the objective impartiality
requirement of Article 6(1) of the Convention”.
42. In
Udaltsov v. Russia, the applicant, a
well-known political and civic activist, co-ordinator of the Moscow
Council of the Left Front movement, had been placed in pre-trial
and post-trial administrative detentions, for disobeying a lawful
order by public officials and leaving a detention facility without
authorisation. The Court found violations of the right to liberty
and security on account of several arbitrary administrative detentions
and his arbitrary retention in a hospital. It also found a violation
of the right to a fair trial in respect of one set of administrative
proceedings. With regard to the applicant’s complaint that the relevant
sentences of detention had been imposed with the purpose of preventing
him from participating in protest rallies, the Court considered
that it was not necessary to examine this grievance from the perspective
of Articles 10 and 11. As to the applicant’s complaint of a violation
of Article 18, it considered that this did not represent a fundamental aspect
of the case.
43. In
Karuyev v. Russia, the applicant had been arrested
and sentenced to a 15 days’ administrative detention for spitting
on a portrait of President Putin (breach of public order). The Court
considered that the act of spitting on a photograph of a politician
in the wake of his re-election should be considered an expression
of political opinion, and that the applicant’s conviction had not
had a clear and foreseeable basis in domestic law. It therefore
found a violation of the applicant’s right to freedom of expression.
44. Although the Court has found violations of Article 3 (prohibition
of torture and inhuman or degrading treatment) in only some of the
above-mentioned cases (for instance, Nemtsov),
the Court has examined the conditions of detention in prisons and
other detention facilities in many other cases against Russia and
found them to be in breach of Article 3. In one of the pending Navalny cases, the applicant complains
under Article 3 about his conditions of detention, including sleep
deprivation, inadequate nutrition, verbal abuse and denial of medical
assistance. Therefore, arbitrary and unlawful detention of political
prisoners does not only imply an unjustified loss of liberty and
breaches of fundamental rights such as freedom of expression or
freedom of assembly, it also involves a risk of inappropriate conditions
of detention which may amount to inhuman or degrading treatment.
4. Interventions by the Council of Europe
Commissioner for Human Rights
45. The Commissioner for Human
Rights, Dunja Mijatović, has also raised issues of relevance to
the present report. They illustrate the alleged misuse of criminal
law against critics and opponents of the authorities and the resulting
threat of lengthy imprisonment.
46. On 11 July 2018, the Commissioner wrote to the Prosecutor
General of the Russian Federation about the case of Oyub Titiev.
In her letter, the Commissioner noted that Mr Titiev, who was “known
for his important work in defending human rights in the North Caucasus
and, in particular, for his quest for accountability for serious
human rights violations by officials”, had been “deprived of his
liberty in January this year and subsequently remanded in custody
and criminally prosecuted for alleged drug possession.” She noted
the conclusion of the Russian Presidential Human Rights Council
that the Chechen authorities had acted “with the aim of excluding
information which would lead to the conclusion that the criminal
case against Mr Titiev had been fabricated” and that “all the refusals
to open a criminal investigation following Mr Titiev’s complaints
have been unsubstantiated and unjustified”. She also noted that
both the head of the Presidential Human Rights Council and the federal
High Commissioner for Human Rights had called for Mr Titiev’s cases
to be “transferred” out of the Chechen Republic, which demonstrated
“doubts as to the likelihood that Mr Titiev’s rights will be safeguarded
if the case remains in the Chechen Republic.”
47. On 6 December 2018, the Commissioner called on the Russian
authorities to release Lev Ponomarev, a “senior figure in the Russian
human rights movement” and “long-standing partner” of the Commissioner’s Office,
whose “work for the defence of human rights spans many decades”.
Mr Ponomarev had been sentenced to 25 days’ administrative detention
by a Moscow district court for a Facebook post publicising an unauthorised
rally. The Commissioner stated that “Punishing someone for sharing
information in social media about a public event intended to be
of a peaceful nature can hardly be justifiable. My Office has repeatedly called
for the revision of the legal framework in the Russian Federation
governing public events. The 25-day detention sentence imposed on
Mr Ponomarev is a stark example of the disproportionate nature of
the sanctions foreseen in the legislation.” She then called for
Mr Ponomarev’s release “as a matter of urgency”.
48. On 13 February 2019, the Commissioner wrote to the federal
High Commissioner for Human Rights about the case of Svetlana Prokopyeva,
a freelance journalist. Ms Prokopyeva was under investigation for alleged
“justification of terrorism”, an offence punishable by up to seven
years’ imprisonment, following publication of a critical article
in which she reflected upon the possible motives of a teenaged suicide
bomber. The Commissioner recalled that she had “observed a worrying
phenomenon of misuse of anti-terrorism legislation to limit legitimate
reporting or criticism of State authorities”. She stated that “imposing
criminal liability upon a journalist for her expressions that do
not contain elements of violence and do not incite others to terrorism
is incompatible with human rights standards on freedom of expression.”
Furthermore, “the criminal prosecution against [Ms Prokopyeva] has
a broader chilling effect on all media and journalists in the Russian Federation,
by preventing them from imparting information of public interest,
and interfering with the right of people to receive it.”
49. On 23 June 2020, the Commissioner called on the Russian authorities
to “overhaul legislation and practice governing freedom of assembly
and of expression”. Her statement noted that “The arrest of more
than 100 people in Moscow and St Petersburg yesterday is yet another
illustration of the intolerance of the Russian authorities towards
people expressing their opinions peacefully.” She also referred
to a conversation with the federal High Commission for Human Rights,
in which she expressed her continuing concerns about the cases of
Ms Prokopyeva and others. These included Abdulmumin Gadzhiyev, a
Dagestani journalist in pre-trial detention, charged with extremism
and terrorist offences for having written about an Islamic preacher
accused of connections with Daesh; Yulia Tsvetkova, an artist and
civic activist currently under house arrest, charged with pornography
and “gay propaganda” offences relating to statements made on her
website; Anastasia Shevchenko, who was under house arrest on charges
of “organising activity of an undesirable organisation” (namely
the Open Russia opposition movement) under a widely-criticised 2015
law, punishable by up to six years in prison; and Yuri Dmitriev,
a civil rights activist and historian of crimes committed by the
Stalin regime, who was accused of pornography and sexual violence
offences committed against his adopted daughter (see further below).
50. On 20 July 2020, the Commissioner called on the Russian authorities
to drop charges against human rights defender Semyen Simonov. Mr Simonov
faced charges under the ‘foreign agents’ law relating to the Southern
Human Rights Centre in Sochi, which documented abuse of migrant
workers involved in construction projects for the 2014 Winter Olympics
and the 2018 football World Cup. The Commissioner noted that “Today’s indictment
of Semyen Simonov […] for not complying with the legislation on
non-commercial organisations is alarming and will have a massive
chilling effect on the entire human rights community in Russia”.
51. On 30 September 2020, the Commissioner returned to the case
of Mr Dmitriev, after his sentence had been increased by the regional
Supreme Court to thirteen years’ imprisonment in a high-security
penal colony, following an appeal by the prosecutor. The Commissioner
declared that "Yesterday’s judgment against Yuri Dmitriev […], having
been acquitted earlier on the same charges,
raises
serious doubts as to the credibility of his prosecution. […] The
harsh verdict delivered by the Karelian Supreme Court in the absence
of the legal counsel chosen by Mr Dmitriev cannot be deemed to have
complied with fair trial guarantees and is a further illustration
of a broader pattern of judicial harassment against human rights
defenders, journalists and other independent or critical voices,
which has been growing in the Russian Federation in recent years.”
52. On 21 January 2021, the Commissioner called on the Russian
authorities to release Alexei Navalny and stop any further judicial
intimidation against him. The proceedings against him, according
to her, appeared to “defy credibility and contradict Russia’s own
law and judicial procedures, as well as international human rights obligations
and standards.” She also criticised the arrests of dozens of persons
for protesting peacefully against Mr Navalny’s arrest in many Russian
cities. On 2 February 2021, after he was sentenced to three and a
half years in prison, she stated that the new judgment contravened
Russia’s international human rights obligations and sent a signal
affecting the integrity of the European system of human rights protection.
53. On 25 November 2021, the Commissioner raised concerns about
the arrest and detention of a large group of Crimean Tatars, including
several journalists, who had assembled peacefully in Simferopol
to witness the release from detention of human rights lawyer Edem
Semedlyaev. She further referred to a discernible pattern of persecution
exemplified by criminal convictions imposed on Crimean Tatar activists
and leaders, often based on abusive counterterrorism or extremism
charges.
54. On 7 March 2022, following the Russian Federation’s military
attack against Ukraine, the Commissioner noted that more than 13 000
people had been arrested in dozens of Russian cities for the exercise
of their legitimate right to protest peacefully against the war.
She mentioned the cases of human rights defenders Oleg Orlov and
Svetlana Gannushkina. The Commissioner raised concerns about the
new legislation criminalising the spread of “fake information” about
the acts of the Russian army, its “discreditation”, and calls for
public protests, with sanctions of up to 15 years in prison and
heavy fines.
5. Lists of political prisoners compiled
by the Memorial Human Rights Centre
55. According to latest information
from the NGO Memorial Human Rights Centre, as of 8 April 2022, there were
87 political prisoners (not persecuted for religion) and 360 persons
imprisoned on religious grounds in Russian Federation.
The
total number was of 447 political prisoners. The number of political
prisoners has been on the rise since the beginning of the preparation
of this report. At the time of my introductory memorandum (October
2020), Memorial’s website included 62 political prisoners (not persecuted
for religion) and 266 political prisoners persecuted for their religion.
56. Memorial assesses individual cases on the basis of their own
“Guidelines for the definition of ‘political prisoner’”. These are
explicitly based on, but not identical to, the definition in Assembly
Resolution 1900 (2012). If anything, they are more restrictive, since
unlike Resolution 1900, Memorial’s criteria foresee “exclusion clauses”.
Memorial uses an additional filter to exclude anyone who used violence
against a person or called for violence based on nationality, race,
religion, etc. It should be noted that Memorial’s lists also include Crimean
Tatars.
57. I should like to note that some of the persons mentioned above
(either in the judgments of the Court, by the Commissioner or by
the Assembly) appear on Memorial’s lists: Alexei Navalny, Alexey Pichugin,
Yuri Dmitriev, Abdulmumin Gadzhiyev, Dennis Christensen, Andrei
Pivovarov, and Emir Usein Kuku. A number of cases flagged by the
experts in our committee hearings (such as Lilia Chanysheva, former
head of Mr Navalny’s organisation in Ufa, and Andrei Borovikov,
environmental activist and former co-ordinator of Mr Navalny’s regional
branch) also appear on Memorial’s lists.
58. Although I have not been able to verify whether all the cases
mentioned in Memorial’s lists satisfy the Assembly’s definition
of “political prisoner”, I find the lists compiled by Memorial to
be credible and reliable. At our hearing on 8 December 2020, Mr Sergey
Davidis, head of the “Support of Political Prisoners” programme of
the Memorial Human Rights Centre, explained to us the strict criteria
and rigorous procedures followed by Memorial in establishing these
lists. Memorial Human Rights Centre is one of the Russian Federation’s
most respected non-governmental organisations and its recent closure
(together with International Memorial) under the “foreign agents”
legislation is just another example of the repression of political
opponents and civil society by Russian authorities, which has dramatically
increased since the beginning of the war of aggression against Ukraine.
The closure of Memorial has given rise to strong criticism at the
highest level in the Council of Europe and in many member States.
It should be noted that the Russian Supreme Court has recently rejected
an appeal to suspend the liquidation of Memorial, completely disregarding
an interim measure granted by the European Court of Human Rights
in December 2021.
6. The reported cases in the light of
the Assembly’s definition of “political prisoner”
59. Assembly
Resolution 1900 (2012) establishes the following definition of “political prisoner”:
“A person
deprived of his or her personal liberty is to be regarded as a “political
prisoner”:
a. if the detention has been
imposed in violation of one of the fundamental guarantees set out
in the European Convention on Human Rights and its Protocols, in
particular freedom of thought, conscience and religion, freedom
of expression and information, freedom of assembly and association;
b. if the detention has been
imposed for purely political reasons without connection to any offence;
c. if, for political motives,
the length of the detention or its conditions are clearly out of
proportion to the offence the person has been found guilty of or
is suspected of;
d. if, for political motives,
he or she is detained in a discriminatory manner as compared to
other persons; or,
e. if the detention is the
result of proceedings which were clearly unfair and this appears
to be connected with political motives of the authorities.”
60. This definition originated in the work conducted in 2001 by
the Council of Europe Secretary General’s independent experts on
cases of political prisoners in Armenia and Azerbaijan, following
those countries’ commitments upon accession to the Council of Europe
to release all political prisoners.
It has consistently been used
by the Assembly since adoption of
Resolution 1900 (2012), including in
Resolution
2231 (2018) “Ukrainian citizens detained as political prisoners
by the Russian Federation” and
Resolution 2322 (2020) “Reported cases of political prisoners in Azerbaijan”.
It has also been endorsed by the Parliamentary Assembly of the Organization
for Security and Cooperation in Europe (OSCE) in the 2014 Baku Declaration
and is a reference for the work of civil society in many countries.
It is important to recall that any
form or duration of deprivation of liberty, be it imprisonment following
conviction, pre-trial detention, administrative detention or even
house arrest, may be covered by the definition of ‘political prisoner’.
61. The Court’s cases mentioned above do not explicitly state
that any applicant was a political prisoner, since the Convention
does not include such a concept and the Assembly’s definition is
not binding for the Court. However, it is clear in the Court’s judgments
finding violations of Article 18 that one or more of the grounds
set out in
Resolution
1900 (2012) is satisfied. In the two
Navalnyy judgments
in which a violation of Article 18 was found (delivered in 2018
and 2019), the Court concluded that the restrictions of Mr Navalny’s
rights to liberty or to freedom of assembly had pursued the ulterior
purpose to suppress political pluralism. The Court had regard to
“the broader context of the Russian authorities’ attempts (…) to
bring the opposition’s political activity under control”, which
implies the recognition of the existence of a wider problem going
beyond the targeted repression of Mr Navalny. It also referred to
a continuous trend of further restrictions of the legislative framework
on freedom of assembly, including criminal liability for assembly-related
offences, and called for legislative and/or other general measures
to prevent similar violations in the future (under Article 46).
62. This context should be borne in mind when considering the
Court’s numerous other judgments finding violations of the right
to liberty, the right to a fair trial, freedom of expression, or
freedom of assembly, but without examining or finding a violation
of Article 18. In fact, Article 18 of the Convention sets a high
threshold which does not necessarily need to be met in each case
in order to satisfy the Assembly’s definition of “political prisoner”.
Article 18 is not so often raised by applicants, and even if it
is raised, the Court may consider it unnecessary to examine it after
the main finding of a violation of the substantive right (Navalnyy and Gunko judgment). It
is also important to note that in principle Article 18 cannot be
examined together with Articles 6 (right to a fair trial) or 7 (principle
of legality), according to the Court’s case law (Navalnyye judgment), but only with
those rights which contain explicit restriction clauses. In any
event, it is evident in many of these judgments that one or more
of the grounds of the Resolution were met: detention in violation
of freedom of expression or freedom of assembly (Frumkin, Yaroslav
Belousov), and/or detention resulting from clearly unfair
proceedings and this appeared connected with political motives of
the authorities (Navalnyy and Ofitserov).
63. As to the cases mentioned above, which were examined by the
Assembly and its rapporteurs or by the Commissioner, most of them
are also likely to fulfil one or more of the criteria set out in
Resolution 1900 (2012). For instance, those having been arrested for protesting
against the current war in Ukraine (including Oleg Orlov, Svetlana
Gannushkina and more than 13 000 peaceful protesters), were detained
in violation of their right to freedom of peaceful assembly. The
same applies to Mr Kara-Murza, who is detained facing prosecution for
spreading ‘deliberate false information’ about the Russian army,
in breach of his right to freedom of expression. The new repressive
measures to silence any opposition to the war have been preceded
by the introduction, over the past several years, of a number of
restrictive laws including the “foreign agents” law, the law on
“undesirable organisations” and the law on “extremism”, which have
all contributed to the systematic persecution of political opponents,
journalists, human rights defenders and civil society activists.
It is clear that all this legislation, which is manifestly incompatible
with the European Convention on Human Rights and other international
human rights standards,
has been used
to curtail basic fundamental rights for purely political reasons.
7. Conclusions
and proposals
64. The cases mentioned above are
only the most prominent ones that have been addressed by various Council
of Europe bodies. They are nevertheless striking as regards their
sheer number and the pattern of systematic repression against any
and all opponents of the current authorities which they follow.
They must therefore be seen in the context of the increasing repression
of political opponents over the past years, or as the Court said
in its Article 18 judgments, in “the broader context of the Russian
authorities’ attempts (…) to bring the opposition’s political activity
under control”.
65. Although the Russian Federation was expelled from the Council
of Europe on 16 March 2022, both the Assembly and the Committee
of Ministers clearly stated that the Council of Europe should continue
to support and engage with human rights defenders, democratic forces,
free media and independent civil society in the Russian Federation.
This support should be shown by firmly condemning the detention
of hundreds of individuals who fall or are likely to fall under
the Assembly’s definition of “political prisoner” and calling for
their release or at least the reassessment of their cases. This
should apply to all prisoners featuring on Memorial’s lists, who
must be presumed to be political prisoners according to our definition.
66. The Assembly should also recall that the Russian Federation
is still bound by the European Convention on Human Rights until
16 September 2022 and that it should fully implement the judgments
of the Court (those already delivered and those which will be delivered
in the future) concerning individuals who are still detained on
politically motivated charges, by adopting the necessary individual
and general measures, particularly in the most egregious cases like
those of Mr Navalny and Mr Pichugin. The Russian Federation should
also co-operate with the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT),
while it remains a Party to the European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (ETS
No. 126). The CPT should be able to visit and monitor the conditions
of detention of these prisoners, pending their release or re-examination
of their cases.
67. The Assembly should also call on the Russian authorities to
implement the recommendations issued by other international organisations
of which the Russian Federation remains a member, such as the United Nations
(and its treaty-based bodies such as the Human Rights Committee
which are competent to deal with individual applications against
the Russian Federation) and the OSCE. The Assembly must continue
to remind the Russian authorities of their international human rights
obligations.
68. The Assembly should also invite Council of Europe member and
observer States to establish visa facilitation schemes and consider
requests for asylum from former political prisoners or threatened
Russian opposition leaders, civil society activists, journalists
and human rights defenders who need to leave Russia. Member and
observer States should also refuse any future extradition requests
for Russian nationals for offences which could be considered politically
motivated and Interpol should examine very carefully any Red Notice
requests from the Russian National Central Bureau that may be politically
motivated.
69. Finally, the Assembly should invite the European Union to
further strengthen economic sanctions against the Russian Federation,
its leaders and officials, on account of their involvement and responsibility
in the persecution of political opponents and the continuing detention
of political prisoners, particularly that of Mr Alexei Navalny.
70. Member States which have adopted “Magnitsky laws” allowing
them to impose targeted sanctions against perpetrators of human
rights violations who benefit from impunity should use these laws
to impose targeted sanctions against all those who, as police officers,
prosecutors, judges, prison officials or in any other function have
contributed to the unlawful deprivation of liberty of political
prisoners and any ill-treatment they suffer in detention. Member
States which have not yet enacted such laws shall consider doing
so, in line with the Assembly’s resolution in this respect.
71. Last but not least, the Assembly should encourage member States
to commemorate, on every 30 October, the International Day of Political
Prisoners,
for all those who are still imprisoned
for political reasons. As Vladimir Kara-Murza said at our hearing
on 4 April 2022, just before he was himself arrested: what political
prisoners fear the most is to be forgotten. We must never forget
them and continue pushing for their freedom.
72. In the light of the above, I propose a series of recommendations,
as set out in the attached draft resolution and draft recommendation.