On Saturday morning, Russian opposition politician and anti-corruption activist Alexei Navalny was flown, in a coma, from a hospital in Siberia to Berlin for medical treatment. On Friday, the European Court of Human Rights had granted interim measures under Rule 39 of the Rules of Court, requiring Russia to grant access to the patient in order to assess his fitness for transport. The Court also ordered the Russian government to inform the Court of the medical treatment Mr Navalny is receiving by noon on Saturday (22 August), and to submit a copy of Mr Navalny’s medical file by 2 p.m. on Monday 24 August.
Mr Navalny fell ill on a plane flight last Thursday, with suspected symptoms of poisoning. The plane made an emergency landing and Mr Navalny was taken to be treated at a hospital in Omsk, Siberia, where doctors said on Friday that he was too ill to be transported elsewhere. Permission for Mr Navalny’s transfer to Berlin came after increased international pressure (from France and Germany in particular), an appeal to President Putin by Mr Navalny’s wife and supporters, and an application to the European Court. Mr Navalny’s family asked the European Court for permission to transport him to the Charité hospital in Berlin for treatment, as otherwise he faced a risk to his life or health, in violation of Article 2 (right to life) of the European Convention on Human Rights.
This recent judgment from the European Court of Human Rights arises from the 2012 transfer from Hungary to Azerbaijan of prisoner Ramil Safarov, a member of the Azerbaijani army, following his conviction in Hungary for the murder of an Armenian officer in 2004. In particular, the Court considered Article 2 ECHR (the right to life) in the context of (a) when a state can be held responsible for the actions of an individual carried out in a private capacity, and (b) the obligations on a state who transfers a prisoner to see out their sentence in their home state.
RS’s crimes, transfer and release
In February 2004, Azerbaijani army officer Ramil Safarov (RS) murdered Gurgen Margaryan (GM), one of two Armenian participants in a NATO-sponsored English language programme in Hungary, by decapitating him with an axe while he lay asleep. RS then tried to break down the door of the other Armenian participant, Hayk Makuchyan (HM), allegedly yelling, “Open the door, you Armenian! We will cut the throats of all of you!”, before he was stopped by the Hungarian police.
RS was tried and sentenced in Hungary to life imprisonment, with a possibility of conditional release after 30 years. During the criminal investigation in Hungary, RS gave evidence that he strongly disliked Armenians because he had lost relatives in the Nagorno-Karabakh conflict between the two countries, and that on several occasions during the programme GM and HM had provoked him and mocked both him and the Azerbaijani flag.
The recent judgment of the European Court of Human Rights in Keaney v Ireland (Application no. 72060/17) highlights the conflict that can arise between a common law legal system and the speed of redress which the European Court demands.
Ilias v Hungary (Application no. 47287/15) was the first case in which the ECtHR considered a land border transit zone between two member states of the Council of Europe, where the host state, Hungary, was also a member of the EU and had applied the safe third country rule under the EU asylum regime. The Grand Chamber held that the applicants’ detention did not breach Article 5 (the right to liberty and security of the person).
The applicants, Mr Ilias and Mr Ahmed, were both Bangladeshi nationals who had left Bangladesh at different times and in differing circumstances. They met in Greece and then traveled together to the Former Yugoslav Republic of Macedonia, then to Serbia, and then to Hungary. On 15 September 2015 they arrived in Hungary and entered the border transit zone at Röszke. They submitted asylum requests on the same day. Within several hours their requests were rejected as being inadmissible and they were ordered to be expelled from Hungary back to Serbia as a safe third country. The applicants then spent 23 days in the transit zone whilst they appealed this decision. On 8 October 2015, following a final decision of the Hungarian courts which rejected their applications for asylum and ordered the applicants’ expulsion, Mr Ilias and Mr Ahmed were escorted out of the transit zone and crossed the border back into Serbia.
On 3 October 2019 the European Court of Human Rights dismissed an application by former NDP leader Udo Pastörs that his criminal conviction in Germany for making a “qualified Auschwitz denial” in a parliamentary speech infringed his right to freedom of speech under Article 10 ECHR. The Court held that, although interferences over statements made in parliament must be closely scrutinised, they deserve little, if any, protection if their content is at odds with the democratic values of the ECHR system.
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