June 08, 2016, 00:46 / Politics

There is judgment after death

The ECHR will continue to consider the case of the deceased actionist, member of the art group “War” Leonid Nikolaev Anastasia Kornya

The European Court of Human Rights continues to consider the case of the deceased actionist, member of the Voina art group Leonid Nikolaev / Rostislav Koshelev / TASS

The European Court of Human Rights (ECHR) has notified that it will continue to consider the complaint of actionist Leonid Nikolaev, a member of the Voina art group, who died in September 2015, about violations committed during the consideration of complaints against his arrest and the extension of his arrest. This was reported by the lawyer of the international human rights group "Agora" Damir Gainutdinov, who represents Nikolaev in Strasbourg.

This is a rare case in the practice of the ECHR, the lawyer knows: usually in the event of the death of the applicant, the case is terminated, at least if we are talking about a violation of the right to freedom and personal integrity. The general practice of the ECHR is that the right to compensation under this article is not inherited, Gainutdinov continues, but perhaps we should talk about changing the position of the ECHR on this issue: recently, in a similar situation, a positive decision was made on a complaint from Romania.

Nikolaev was arrested in St. Petersburg in November 2010 after the Palace Coup action and spent more than three months behind bars. He was charged with hooliganism motivated by social discord. In 2012, he complained to the ECHR that the preventive measure against him was chosen illegally and unreasonably; in addition, the court made the decision to extend his arrest even before the cassation appeal against the chosen preventive measure was considered. At the end of last year, the court communicated this complaint and did not even ask the Russian government any questions about the violation: it is typical, the ECHR has pointed out this problem to the Russian authorities many times and in this case invited them to make a unilateral declaration - to admit the violation and voluntarily pay compensation.

Russia lost

On Tuesday, June 7, the first decision of the ECHR in the “Bolotnaya case” came into force: the Grand Chamber refused to review the case of Yevgeny Frumkin and stated that Russia had violated the right of citizens to freedom of assembly.

The Russian Commissioner to the ECHR, Georgy Matyushkin, did so, but in April he notified the court that he was withdrawing the declaration due to the death of the applicant (Vedomosti has a copy of the letter). The Russian authorities believe that even if the court, at the insistence of the applicant’s mother, continues the proceedings, she has no right to compensation for moral damages, the letter says, such a right cannot be transferred to third parties, since the suffering suffered by the applicant is closely connected with his personality.

Lawyer Dmitry Agranovsky says that the position of the Ministry of Justice looks at least strange. Even in Russian legislation, the issues of the heirs’ right to compensation are clearly regulated: death cannot be an obstacle to rehabilitation, and the Constitutional Court spoke quite clearly on this matter, recalls Agranovsky.

This is not a court decision yet, but only confirmation that the consideration of the case is ongoing, so it is still too early to draw conclusions, warns Double Bridge Law lawyer Sergei Golubok. The ECtHR has the right to do this even after the death of the applicant, if the observance of human rights so requires. Although in practice this is the exception rather than the rule, Golubok concludes.