Rule of law: Navalny arrest emblematic of deterioration in Russia

Margaret TaylorMonday 8 March 2021

The arrest in mid-January of opposition leader Alexei Navalny by Russian authorities led to mass protests in the country. Thousands again took to the streets to show their anger after Navalny, an outspoken critic of President Vladimir Putin, was jailed at the start of February on a range of charges dating back to 2014.

Philippe Dam, Advocacy Director, Europe and Central Asia Division, at non-governmental organisation (NGO) Human Rights Watch, says that while ostensibly the protests were about the Navalny case, in reality they were used to highlight far wider concerns about the rule of law in Russia. ‘The arrest of Navalny on quite politically motivated charges and the criminalisation of protestors, we see as the tip of the iceberg’,’ he says.

According to Russian human rights monitoring organisation OVD-Info, over 4,000 people were detained during protests on 23 January and over 5,000 a week later. Anti-corruption NGO Transparency International says many of those held were fined or jailed for between five and 15 days, while protests that were due to go ahead on 2 February were ‘quickly and brutally suppressed by the authorities’.

In many ways it’s remarkable that you can challenge your government in an international court and people are doing that in Russia and succeeding

Professor Philip Leach
Director of Middlesex University’s European Human Rights Advocacy Centre

The arrests, the organisation says, ‘violate the principle of rule of law and are intended to silence the voice of civic protest’.

Dam agrees. ‘If you look at the criminalisation and crackdown on Navalny protestors, or people who have protested against the authoritarianism of the Russian government, it’s part of a broader effort to stop freedoms like freedom of speech and freedom of association in the country’, he says.

‘It’s not just about Navalny’, adds Dam. ‘It’s about a much broader effort to control expression and control power.’

Anne Ramberg, Co-Chair of the IBA’s Human Rights Institute, says the situation has been worsening over the past decade to the point that Russia now ‘is not a democratic state built on the rule of law’.

‘This has been the case since Putin returned as president in 2012’, she says. ‘Repression through propaganda, legislation and lack of independence for the judiciary has increased dramatically; political trials and convictions have become usual and the space for civil society is shrinking; harassment, violence and threats as well as politically driven legal steps have become the norm; and attacks on journalists, human rights activists and lawyers happen all the time.’

As a member of the Council of Europe and signatory of the European Convention on Human Rights, Russia can be held accountable for its actions in the European Court of Human Rights (ECtHR).

Its citizens are among the most prolific users of the Strasbourg-based institution, with Ramberg noting that in 2019 around 15,000 cases originating in Russia were heard there. That equates to around a quarter of all the cases that came before the Court that year and represents a 50 per cent increase on the number of Russian mandates brought there in 2017.

Yet despite the ECtHR finding against the Russian state in hundreds of cases, the Putin regime refuses to abide by its rulings, which are legally binding on Council of Europe members.

In 2015 Russia strengthened its own hand in this respect by passing a law that enables it to bypass ECtHR decisions by ruling them unconstitutional. In mid-February it refused to act on an order from the Court that Navalny be released over fears for his life.

Russian Justice Minister Konstantin Chuychenko stated that the ruling did not contain ‘any reference to any fact or any norm of the law’ and as such was ‘baseless and unlawful’. Navalny was subsequently sent to a prison colony.

Nevertheless, Professor Philip Leach, Director of Middlesex University’s European Human Rights Advocacy Centre, stresses that the Court’s ruling was highly significant because it was granted before the case against Russia has concluded.

The Court says it will only grant such interim measures ‘where there is a risk that serious violations of the Convention might occur’ and that as such ‘a high proportion’ of requests are refused, Leach adds. He says this shows how seriously the Court views Russia’s actions against Navalny.

‘It’s unprecedented for them to order release in that way,’ Leach says. ‘It has been possible for the Court to order release in a merits judgment and it has done that on a small number of occasions. It does reflect the nature and the gravity of the case and the evidence that’s already available about the state’s collusion in [Navalny’s] treatment.’

The ECtHR is not the only institution attempting to hold Russia to account. The EU became involved in the Navalny situation in February, saying it will invoke the European Magnitsky Act to bring sanctions against the officials who oversaw his arrest.

Ramberg remains sceptical about the effect of the ECtHR ruling, however, either in securing Navalny’s release or moderating Russia’s behaviour. ‘Unfortunately nothing will happen’, she says. ‘Russia is and will most probably stay as a member of the Council of Europe.’

For Leach – who is acting for Navalny in another case that is due to come before the ECtHR later in 2021 – that is all the more reason for Russian citizens to continue acting.

‘In many ways it’s remarkable that you can challenge your government in an international court and people are doing that in Russia and succeeding’, he says. ‘It builds up a picture. Even if the rulings are not immediately implemented they are extremely important. The implementation is often a process. In a case like [Navalny’s] it’s very clear what Russia has to do and it’s very clear when they haven’t done it.’

Header pic: Protestors rally in Saint Petersburg, Russia, 31 January 2021. Shutterstock.com / Konstantin Lenkov

Join the IBA

Expand your international network, gain new business and learn about the latest legal developments through IBA digital content and events, with IBA membership. Available for individuals, students, law firms, bar associations and corporations.

Find out more