The European Court of Human Rights (ECtHR) found on Tuesday, 21 September 2021 that Russia was responsible for the assassination of former KGB officer Alexander Litvinenko (Carter v. Russia, no. 20914/07, 21 September 2021). He died in 2006 after being poisoned in London with a rare radioactive substance. His death occurred after drinking a cup of green tea, which was poisoned with polonium-210 at a London hotel (Reuters, 2021).
In both substantive and procedural aspects, The Court found Article 2 ECHR to have been violated. The Court issued the judgment by six votes to one, which ultimately required the Russian state to compensate Mr. Litvinenko’s widow 100,000 euros in non-pecuniary damages (Marko Milanovic, 2021). Even though this judgment raises various political and diplomatic issues, this article aims to shed light on the most crucial aspects of this judgment.
Background of the case
The applicant, in this case, is Maria Anna Carter, who has dual nationality of Britain and Russia. She is the widow of Aleksandr Litvinenko who had worked for the Soviet and Russian security services. However, in November 1998, he revealed his information public and alleged that he had been asked to examine the possibility of assassinating a wealthy businessman. Based on this, In 2001 he and his family were granted asylum in the United Kingdom and acquired British citizenship in 2006 (ECtHR, 2021).
In October 2006, Mr. Litvinenko had three meetings with Andrey Lugovoy and Dmitriy Kovtun. After the first meeting, they went to dinner. Consequently, Mr. Litvinenko vomited that night and remained ill for two days. In this regard, evidence of polonium contamination was found in the room where the meeting took place and the restaurant where they had dinner. The second meeting took place from 25 to 28 October 2006. Also, a pattern of polonium contamination consistent with accidental spillage was detected in Mr. Lugovoy’s hotel room (Ibid).
Ultimately, on 31 October, Mr. Lugovoy and Mr. Kovtun traveled to London, and they had a meeting with Mr. Litvinenko for the third time. During the meeting, Mr. Litvinenko drank green tea in a hotel bar contaminated with Extensive traces of polonium. On 2 November 2006, Mr. Litvinenko became ill, and He died on 23 November 2006. The cause of death was acute radiation syndrome caused by very high levels of polonium 210 (Ibid).
Violation of Article 2 European Convention on Human Rights
Generally, in this judgment, The Court held that Article 2 ECHR has been violated in its substantive and procedural aspects. In this regard, Article 2 ECHR provides that;
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
Article 2 contains two substantive obligations. First, the general obligation to protect by law the right to life, and second the prohibition of intentional deprivation of life, delimited by a list of exceptions. Also, Article 2 of the Convention includes a procedural obligation to carry out an effective investigation into alleged breaches of its substantive limb (ECtHR, 2021).
Concerning the procedural aspect, the Court held that there is a procedural jurisdictional link among Russia and the death of Mr. Litvinenko. The reason refers to the fact that Russia has launched a domestic investigation. Also, retaining exclusive jurisdiction over Mr. Lugovoy amounts to establishing a ground for Russia’s jurisdiction regarding the alleged procedural violation of Article 2 (ECtHR, 2021).
In addition, the Court provided that despite the fact that Russia had provided an outline of the investigative steps taken, no document had been submitted to prove the alleged investigation. As a result, the Court found a violation of the procedural limb of Article 2 based on the Russian officials’ failure to carry out an effective investigation into the death of Mr. Litvinenko (Ibid).
Another element refers to the substantive aspect. In this regard, in order to decide whether Russia had jurisdiction by virtue of its agents operating outside its territory, ECtHR considered two questions first, whether the assassination of Mr. Litvinenko had amounted to the exercise of physical power and control over his life in a situation of proximate targeting, and second, whether it had been carried out by individuals acting as State agents.
Also, the Court held that, beyond reasonable doubt, the assassination had been carried out by Mr. Lugovoy and Mr. Kovtun. It established this assumption based on evidence that indicated the planned and complex operation, which involved the procurement of a rare, deadly poison, the travel arrangements, and repeated and sustained attempts to administer the poison (Ibid).
Concerning the question of whether Mr. Lugovoy and Mr. Kovtun had acted as agents of the Russian State, the Court held that there was no evidence that either of them had had any personal reason to kill Mr. Litvinenko. Also, if they wanted to act independently, they would not have had access to the rare radioactive isotope. Also, The Court found that the identification of the perpetrators of the killing and the indication of their connection with the Russian authorities had established a strong prima facie case that, in killing Mr. Litvinenko, Mr. Lugovoy and Mr. Kovtun had been acting on the direction or control of the Russian authorities. However, it mentioned that Russia had made no serious attempt to provide information or counter the UK authorities’ findings on the Russian state’s involvement (Ibid).
As a result, the Court concluded that based on the Russian Government’s refusal to provide the documents from the domestic investigation and its failure to rebut the prima facie case of State involvement, Mr. Litvinenko’s assassination was attributable to Russia. Therefore, there had been a violation of that Article in its substantive aspect as well.
Accordingly, based on Article 41 ECHR, The Court held that Russia is required to pay the applicant 100,000 euros regarding non-pecuniary damage and EUR 22,500 in respect of costs and expenses. It also rejected the applicant’s claim for “punitive” damages.
Bibliography
ECtHR press release, 2021, “Russia was responsible for assassination of Aleksandr Litvinenko in the UK”.
ECtHR, 2021, “Guide on Article 2 of the Convention – Right to life”.
ECtHR, 2021, “Carter v. Russia, no. 20914/07”, 21 September 2021.
Marko Milanovic, 2021, “European Court Finds Russia Assassinated Alexander Litvinenko”, accessed 26 September 2021 < https://www.ejiltalk.org/european-court-finds-russia-assassinated-alexander-litvinenko/ >.
Reuters, 2021, “Russia was behind Litvinenko assassination, European court finds”, accessed 27 September 2021 < https://www.reuters.com/world/european-court-rules-russia-was-behind-litvinenko-killing-2021-09-21/ >.
By Mohammadjavad Javadi: The European Institute for International Law and International Relations
