November 02, 2021
By Joseph Finnerty
The Chamber’s Carter v. Russia judgment indicates a revolution for the Court’s approach to the extraterritorial application of the European Convention of Human Rights (ECHR). Its publication suggests a turn away from its, to put it diplomatically, conservative case law on the subject. Its innovation also extends to its approach to attribution and proof, leaving much to unpack from the judgment.
The case has already received notable attention. For Marko Milanovic, and his succinct extraterritorial analysis, the decision is ‘simply remarkable’. Although its extraterritorial findings are impossible to ignore, this post will focus on the evidential dimension of the judgment to enrich the commentary. In summary, the judgment provides a small piece to the ambiguous puzzle that is the evidentiary regime of the European Court of Human Rights (ECtHR or Court).
The case concerns the 2006 assassination of Russian dissident Aleksandr Litvinenko with the use of polonium-210 in a teapot. The UK’s Metropolitan Police Service (the ‘MPS’) concluded that there was sufficient evidence to charge Mr Lugovoy and Mr Kovtun (not Russian state organs at the relevant time) for Litvinenko’s murder. The Russian Prosecutor General has an ongoing criminal investigation. However, a UK Public Inquiry (the ‘UK Inquiry’) concluded that Lugovoy and Kovtun murdered Litvinenko and that this was ‘probably approved by’ Russian President Vladimir Putin.
Litvinenko’s widow, Marina, complained, under Articles 2 and 3 of the ECHR, that (1) her husband’s murder was conducted under the authority, or with the connivance, of the Russian State and (2) the Russian authorities had failed to conduct an effective investigation.
The Court first turned its attention to Russia’s compliance with Article 38 of the ECHR (obligation to furnish necessary facilities for examination of the case). Citing the ongoing nature of their investigations and domestic regulations, Russia declined to provide any investigation files to the Court (paras. 90-91). This failure to co-operate, notwithstanding repeated requests, led to the Court to conclude:
‘(…) that the respondent State has failed to comply with its obligations under Article 38 of the Convention on account of its unjustified refusal to submit the requested material. In so far as the Government have sought to rely on the documentation which they have refused to provide, the Court will draw appropriate inferences from their failure to produce them.’
This Article 38 violation, together with the thoroughness of the UK Inquiry and corroboration with MPS investigations, facilitated the Court’s admission of the UK Inquiry as evidence (para. 110).
Turning to the extraterritoriality of Article 2’s substantive limb, the Court correctly identifies attribution as the linchpin for extraterritoriality (para. 161). The reasoning goes on to consider that:
‘(…) the identification of the perpetrators of the killing and the indication of their connection with the authorities of the respondent State established a strong prima facie case that, in killing Mr Litvinenko, Mr Lugovoy and Mr Kovtun were acting on the direction or control of the Russian authorities.
While there existed a theoretical possibility that the assassination of Mr Litvinenko might have been a “rogue operation” not involving State responsibility, the information needed to corroborate this theory lies wholly, or in large part, within the exclusive knowledge of the Russian authorities which moreover asserted exclusive jurisdiction over Mr Lugovoy and Mr Kovtun by invoking the constitutional protection against extradition. In these circumstances, the burden of proof was shifted onto the authorities of the respondent State which were expected to carry out a meticulous investigation into that possibility, identify those involved in the operation and determine whether or not Mr Lugovoy’s and Mr Kovtun’s conduct was directed or controlled by any State entity or official, which is a factor indicative of State responsibility (see Article 8 of the Draft Articles in paragraph 72 above).’
The nail in the attribution coffin ultimately came from Russia’s failure to cooperate and the adverse inferences the Court drew from this indifference (paras. 167-169), concluding a violation of Article 2’s substantive limb.
The extraterritoriality of Article 2’s procedural limb is comparatively less controversial, having been established by the commencement of Russian investigations (para. 133). Nevertheless, the Court went on to comment that it would have established a procedural jurisdictional link because of Russia’s ‘exclusive jurisdiction over an individual who is accused of a serious human rights violation’ (para. 134). As with the substantive complaint, Russia’s failure to cooperate and provide evidence of investigations led the Court to find a further violation of Article 2’s procedural limb.
Judge Dedov’s Dissenting Opinion refutes a violation of any kind. He challenges the extraterritorial conclusions of the Court by disputing various factual findings, critiquing the UK Inquiry’s impartiality and the Court’s admission of the same. Judge Dedov opines that the ‘main problem in the present case is how the Court assessed the evidence in front of it’ (Dissenting Opinion, para. 16). The crux of his argument appears to be that ‘there was nothing [prima facie] to be refuted by the Government as the complaint under the substantive limb of Article 2 was not based on any material evidence’ (Dissenting Opinion, para. 16). He does, however, concede that:
‘(…) Indeed, the Government did not institute a criminal investigation in respect of the “suspects”, they refused to participate in the public inquiry, and they even refused to provide the Russian criminal case file to the Court. That could make the Court suspicious and more confident that there was really a prima facie claim.’
The Court’s approach to evidence highlights some enduring questions regarding the Court’s evidentiary regime. However, it is not problematic, as Judge Dedov puts it in his Dissenting Opinion. It is persuasive, logical and just. This post’s commentary focusses on three evidentiary elements: admissibility, assessment and inferences. It shall then, briefly, address the Dissenting Opinion.
First, regarding evidence admissibility and the preliminary issue addressed by the Court, it must not be overlooked that the Court’s admittance of the UK inquiry forms the basis for the attribution and extraterritorial findings under Article 2’s substantive limb. Had the Court not admitted such evidence, in all likelihood, it would not have been able to find a prima facie case of attribution and shift the burden of proof onto Russia. This would, in turn, undermine any prospects for an Article 2 substantive violation.
The most important point to make here is that the Court was entitled to admit the evidence of the UK Inquiry. The Court has consistently held that it has a great degree of flexibility in assessing, valuing and admitting evidence before it (see para. 97 and further references). It follows that the Court is entitled to rely on any evidence admitted to the extent to which it is content with the probative quality of the same. In addition to confirming the wide discretion of the Court in determining the admissibility of evidence, the judgment offers some insight into the indicators considered by the Court in its assessment of domestic investigative findings. Such indicators include experience and independence of investigators, transparency (e.g. public hearings and open document access), accountability (e.g. possibility of judicial review), and accessibility (i.e. opportunity of all those concerned to be heard).
Unfortunately, this insight does not extend to the Court’s final decision to admit the UK Inquiry as evidence. The weight that the Court afforded to each of the factors which appear to have motivated the admission (namely, the lack of co-operation on the part of Russia, the thoroughness of the UK Inquiry and corroboration with MPS investigations) remains unclear. However, had Russia complied with Article 38, and provided its own investigation file (or even parts of it), the Court may not have been as ready to admit, or at least afford the same probative value to, the UK Inquiry evidence. Indeed, the Court’s frustration regarding Russia’s lack of co-operation is plain to see throughout the judgment (see for example paras. 93, 104, 110, 139, 141, 143, and 147).
Second, with regard to assessment of evidence, the Court has ‘complete freedom in assessing not only the admissibility and the relevance but also the probative value of each item of evidence before it’ (Janowiec and Others v Russia, para 208). The standard of proof generally applied by the Court is ‘beyond reasonable doubt’. Those familiar with the Court’s application of this standard always promptly point out that this does not correspond with the domestic criminal law standard. The latter is notably higher than the former. However, the former’s operation is far more ambiguous. This is further complicated by the oscillation of the burden of proof between applicant and state. In cases concerning Article 2, for instance, the Court has held that where an applicant presents a ‘prima facie’ case of state killing, the burden of proof may shift to the respondent state (para. 153 and respective citation).
Carter affirms this approach in the Article 2 context. Of note, however, is the Court’s currency conversion concerning the domestic standards adopted by the UK Inquiry. Namely a two-tier approach, with findings of fact primarily being based on the domestic civil standard of ‘on balance of probabilities’ and the qualification of ‘I am sure’ indicating a factual finding based on the domestic criminal standard of ‘beyond reasonable doubt’ (see UK Inquiry, para. 2.20 here). The Court did not hesitate in endorsing the UK Inquiry’s ‘beyond reasonable doubt’ factual findings, namely that Lugovoy and Kovtun, acting on behalf of others, poisoned Litvinenko (para. 154 and 163). Turning to the question of attribution, the Court emphasised that the use of polonium-210 and state motive were indicative of state involvement (paras. 164-165). It held that these UK Inquiry ‘on balance of probabilities’ findings constituted ‘a strong prima facie case’ and shifted the burden (paras. 165-166). Notably, it did not go as far as to endorse those findings with its own ‘beyond reasonable doubt’ standard. This arguably 1:1 conversion does not necessarily sit right with the Court’s repeated assertion that ‘it has not borrowed the approach of the national legal systems that use that [beyond reasonable doubt] standard’ (para. 151).
Carter’s evidential legacy is, unfortunately, practically limited. The reality is that not every applicant will have an independent public inquiry report, from a third country costing in excess of £2.3 million, to offer the Court as prima facie evidence. This leaves the vast majority of applicants faced with the perpetual problem of proving substantive state engineered violations of Article 2 when they only have recourse to less refined sources of evidence (see, for example, Dr Klocker’s recent post on Estemirova v. Russia).
Contrasting Carter with Estemirova, and moving to the third limb of this comment, it is apparent that a violation of Article 38 is not in itself sufficient to persuade the Court to draw inferences or consider shifting the burden of proof in cases concerning such killings. Indeed, the inferences drawn by the Court in its substantive assessment of Article 2 followed the shifting of the burden of proof. Unfortunately, this evidential conundrum is not new and is not solved by Carter (see the compelling separate opinions by Judge Bonello on this point in Tahsin Acar v. Turkey, Şirin Yilmaz v. Turkey; Pruneanu v. Moldova, Anguelova v. Bulgaria, and Sevtap Veznedaroğlu v. Turkey). Admittedly, the facts for the case illuminated by the UK Inquiry negated any requirement for the Court to grapple with the role of inferences in shifting the burden in respect of the substantive complaint.
Carter still fully benefited (or suffered from the state perspective) from the possible consequences of an Article 38 violation. The inferences drawn from the failure of the Russian authorities to engage with the Court were stinging, and apparently causative for the findings of the procedural (paras. 153 and 146) and substantive violations (para. 169) of Article 2. Of course, Carter is not the first time that the Court has drawn adverse inferences in Article 2 cases, engaging questions of state attribution (see, for example, Alikhanovy v. Russia, para. 72). However, this is the first time that an inference, drawn by the Court, has led to a finding of attribution which has, in turn, paved the way for the extraterritorial application of the ECHR. Put simply, inferences have not been used by the Court when the stakes were this high. The potential consequences of this finding in terms of extraterritoriality are profound (see the discussion on other rights here).
Adopting a holistic assessment, Carter’s recurrent use of inferences suggests that the practise is not necessarily still a ‘forlorn hope’ (Concurring Opinion of Judge Bonello, Tahsin Acar v. Turkey, para. 11) and is gaining momentum within the Court (see also Merabishvili v. Georgia). However, the causative value of negative inferences in the admission of the UK Inquiry, and findings of fact more generally, is very much open for debate.
Lastly, should the case proceed to the Grand Chamber, there is a risk that a different approach to evidence may be adopted. However, Judge Dedov’s argument should certainly not be favoured. Not least because he failed to afford any regard to Russia’s blatant disregard for Article 38 and engage with the inferences drawn by the Court. He also appears to measure the UK Inquiry to a criminal standard (Dissenting Opinion, para. 16); notwithstanding the fact that it never purported to be a criminal trial and the Court’s repeated statements that its ‘beyond reasonable doubt’ evidence standard is not equivalent to a domestic criminal one.
Carter’s most notable contribution to the case law on the ECHR is its extraterritorial reasoning. Its substantive extraterritorial findings are precariously balanced on a finding of attribution (the latter is deserving of another blog post given the tendency of the Court to avoid engaging with Articles on the Responsibility of States for Internationally Wrongful Acts). However, the findings of attribution do not stand on their own either. They are balancing on the Court’s treatment of evidence and use of inferences. But for the Court’s approach to evidence and proof, we may have been waiting much longer for the start of the ECHR’s extraterritorial revolution.
The evidentiary approach of the Court is not as ambitious as its extraterritoriality findings, largely because the ambiguous ‘beyond reasonable doubt’ standard cannot be said to be as restrictive as the legacyof Bankovic. This ambiguity permits the Court far more manoeuvrability in its approach to evidence and proof. Such manoeuvrability has been exercised in Carter for the better, but the judgment leaves many of the most pertinent questions surrounding evidence unanswered. Realistically, the Chamber’s reasoning requires three Grand Chamber rubber stamps: to effectively dispel any attempts to revive Bankovic; affirm the findings of attribution; and cement the evidentiary approach. If the evidential base holds steady before the Grand Chamber, Carter’s legacy will be far-reaching.
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