Article 18 in the face of an objectively genuine criminal prosecution: The case of Yuriy Dmitriyev v. Russia

by Philip Nedelcu

On 31 March 2026, the European Court of Human Rights (ECtHR) delivered its judgment in the case of Yuriy Dmitriyev v. Russia (case no. 47934/17), one of the several thousand individual applications still pending against Russia after it ceased to be a member of the Council of Europe on 16 September 2022. The applicant, a historian and human rights activist, complained that his pre-trial detention and criminal conviction violated his rights under Arts. 5, 6, and 18 of the Convention.

In this post, I will summarise the facts and the findings of the Court before analysing more closely the Court’s findings under Article 18 and how this case relates to previous cases against Russia involving the same provision.

The facts

The applicant is a historian and has worked since the late 1980s on Stalin’s ‘Great Terror’ campaign and uncovered the largest mass grave in Karelia. From 2014 until its dissolution by the Russian authorities, he headed the Karelia branch of Memorial Human Rights Centre (Memorial).

Between 2016 and 2020, the applicant was the subject of two sets of criminal proceedings concerning sexual offences against his adoptive daughter. In December 2016, Russian police searched his home after an anonymous tip and found more than 200 photographs of his then 11-year-old adoptive daughter, some depicting her nude. He was charged with producing child pornography and held in pre-trial detention until December 2017, when his detention was replaced by house arrest. In April 2018, the first-instance court acquitted him, accepting that the photographs had been taken to document the physical condition of his daughter. This judgment was quashed in June 2018 after an appeal by the prosecution.

Also in June 2018, the authorities opened a second case against the applicant, this time for sexual assault, on the basis of statements by a psychologist and the adoptive daughter’s grandmother, subsequently confirmed by the daughter herself. The applicant was rearrested. In July 2020, the first-instance court convicted him of sexual assault and imposed a sentence of three years and six months. Given the time the applicant had served in pre-trial detention, the court decided that only four months remained to be served.

Both the prosecution and the applicant appealed, and the case came before the Supreme Court of Karelia. When the applicant’s chosen lawyer requested an adjournment as he was unable to attend the hearings due to COVID-19 related quarantine, the court refused and ordered the appointment of a new lawyer who had only days to prepare. The applicant himself participated via video link; his requests to appear in person, citing a hearing impairment, were refused. The Supreme Court quashed the previous judgment and sentenced the applicant to 13 years. It also remitted the case regarding the photographs to the first-instance court, which convicted the applicant and imposed an aggregate sentence of 15 years.

Several UN human rights experts, the CoE Commissioner for Human Rights and the European Union expressed concern that the convictions were politically motivated.

The complaints and the judgment

Before the Court, the applicant raised three different complaints. He argued that his arrest and pre-trial detention violated Art. 5 paras. 1 and 3, as there had been no reasonable suspicion in the first criminal case and as his pre-trial detention in both cases had been extended without sufficient reasons. Furthermore, he argued that the proceedings before the Supreme Court of Karelia violated his rights under Art. 6 paras. 1 and 3 lit. c), pointing to his inability to participate in person and the lack of effective legal assistance of his own choosing. Lastly, he argued that the proceedings as a whole were politically motivated, violating Art. 18 in conjunction with Arts. 5 and 6.

The Court rejected the complaint under Art. 5 para. 1 as manifestly ill-founded. It stated that the photographs, whose existence the applicant did not dispute, provided a sufficient factual basis for a reasonable suspicion. Regarding Art. 5 para. 3, the Court found a violation with respect to the detention between 2016 and 2018, as the domestic courts had merely repeated reasons that were unconvincing or unfit to justify the extension without analysing the necessity and proportionality of the continuing detention. Regarding the pre-trial detention between June 2018 and 2020, the Court decided that it was not necessary to examine this part of the applicant’s complaint given its previous finding, applying its Câmpeanu approach.

Under Art. 6, the Court found a violation of the applicant’s rights in the way the Supreme Court of Karelia had conducted the proceedings. The Court based this finding mainly on the Supreme Court’s refusal to adjourn despite the indication by the applicant’s chosen lawyer that he would be available after quarantine, leaving the applicant with a court-appointed lawyer who had only had a few days to familiarise himself with the case file.

Under Art. 18, the Court rejected that the criminal proceedings against the applicant had been politically motivated. The applicant had pointed to his activities as historian working on Soviet state terror, the Russian authorities’ efforts to downplay his findings, his membership of Memorial and the campaign against the organisation as well as the statements by various international actors suggesting a connection between his work and his prosecution.

The Court however concluded that ‘the various factors relied upon by the applicant do not form a sufficient basis for the Court to conclude that his detention or criminal trial pursued a purpose not prescribed by the Convention’ (para. 115).

It reached this conclusion by reaffirming that the Convention does not grant a right not to be prosecuted and that an ulterior purpose must be identifiable through the usual approach to proof. It then examined various aspects of the case, both those that the applicant had brought forward as well as factors that regularly play a role under Art. 18.

Regarding the proceedings as such, it found that the authorities’ handling of the case did not suggest any purpose unrelated to the prosecution of crime. Regarding the extension of the applicant’s pre-trial detention, the Court clarified that the shortcomings of these decisions did not imply an improper motive either. The case also did not ‘disclose a pattern of conduct comparable to situations in which the criminal justice system was used to silence or neutralise individuals’, as had been the case inter alia in Ukraine v. Russia or Kavala v. Turkey (para. 112). The Court furthermore treated the absence of statements by high-ranking public officials as weighing against the applicant’s allegations. Lastly, the Court stated that the concerns of international observers which centred on the applicant’s role as a critical historian and member of the Memorial could not establish an ulterior purpose without concrete factual elements, referring to the necessity to base its assessment on ‘evidence in the legal sense’ (para. 114).

The finding of no violation under Art. 18 was unanimous. However, Judge Hüseynov in a separate opinion expressed disagreement with the Court’s reasoning. He concluded that the authorities had pursued both legitimate prosecutorial aims and the ulterior purpose of punishing the applicant for his work with Memorial and on Stalin’s regime. As evidence, he referred to the campaign against Memorial and to a state-funded television documentary in which the applicant had been depicted, with materials from his case file being disclosed. He nonetheless considered that there was insufficient evidence to establish that the ulterior purpose had been the predominant purpose as required by the Grand Chamber’s Merabishvili judgment.

The Court’s application of Art. 18

The finding of no violation under Art. 18 sets Dmitriyev apart from the Court’s recent case-law concerning Russia. Since September 2022, the Court has found violations of Art. 18 against Russia in five cases, strongly condemning what it saw as targeted, politically motivated prosecutions of civil society activists (see e.g. Kutayev or Anti-Corruption Foundation (FBK) and others).

The decisive reason for this difference appears to be the Court’s finding under Art. 5 para. 1 that there had been a reasonable suspicion against the applicant. Where the Court has found Art. 18 violations against Russia, it has typically done so after concluding that there had been no reasonable suspicion or no legitimate aim. In contrast, the reasonable suspicion against Dmitriyev put the case on a different trajectory and heavily influenced the Court’s reasoning under Art. 18.

As such, the interplay between the finding of a reasonable suspicion and the Court’s assessment under Art. 18 is defensible, given that this indicates the existence of a legitimate aim that the domestic authorities pursued. The Court has proceeded in a similar manner in other cases in which it had found under Art. 5 para. 1 that a reasonable suspicion had existed against the applicant.

Nonetheless, its examination of Art. 18 reveals certain shortcomings in the way in which the Court proceeded from the finding of a reasonable suspicion. Three points are crucial in that regard.

First, the Court did not properly engage with all pieces of contextual evidence, namely the state-funded TV documentary and the broader campaign against Memorial and other NGOs that it had criticised in previous judgments, both of which Judge Hüseynov points to. Instead, the Court denied that the applicant’s case was one in which ‘the criminal justice system was used to silence or neutralise individuals’ by referring to ‘the material before the Court’ (para. 112) in the abstract and without addressing the campaign against Memorial and its potential implications for the applicant’s case. The forced, disproportionate dissolution of Memorial appeared only in regard to the position of international observers, which the Court then dismissed as insufficient to establish an ulterior purpose, rather than being weighed as a factual element of its own.

Second, the Court denied the relevance of the applicant’s historical work by pointing to the absence of public statements by high-ranking officials. While it has not been the first time it has used this argument, the Court thereby reverses the evidentiary logic behind statements of political actors. It seems sensible to use such statements as potential proof for a political motive; however, their absence does not equally indicate the absence of a political motive, since statements by politicians are not a necessary element of politically tainted proceedings. Furthermore, their absence is the desired state of things in a state based on the rule of law.

Third, the Court’s heavy reliance on the objective legitimacy of the criminal proceedings is selective, as it leaves out the appellate proceedings before the Supreme Court of Karelia. However, several elements of these proceedings speak against the Court’s assessment that the proceedings against the applicant were an ‘ordinary conduct of judicial review’ (para. 110): the Supreme Court’s refusal to adjourn for two weeks until the applicant’s chosen lawyer was able to participate, and the quadrupling of the applicant’s sentence for sexual assault without notable new developments or evidence.

Overall, and in light of these further factual elements that might have indicated a different conclusion, it seems that the Court gave too much weight to the genuine nature of the allegations against the applicant in assessing his complaint under Art. 18. In doing so, it did not adhere to its position that Art. 18 can be violated even when there has been no violation of the corresponding right. In such cases, the doctrine of plurality of purposes is meant to prevent hasty findings of no violation under Art. 18. Instead, the judgment suggests a binary conception of politically motivated prosecutions, making it seem as though they manifest themselves through objectively unfounded prosecutions accompanied by public statements. However, the reality is more complex. Political justice can equally occur in cases that appear genuine, but are pursued selectively against specific individuals or conducted with unusual priority or severity. Whether these latter elements had been present in the proceedings against the applicant is something the Court apparently did not analyse properly.

In turn, Judge Hüseynov’s position that there had been both a legitimate and an ulterior purpose appears more persuasive. However, the same cannot be said for his conclusion that this ulterior purpose was not predominant. Not only does the short reference to missing evidence leave unclear which evidence Judge Hüseynov would have considered necessary. By focusing on insufficient evidence, he furthermore seems to have adopted a primarily fact-oriented perspective on predominance that does not fully align with the Court’s previous case-law. The Court has based the predominance assessment also on normative factors, focusing on the gravity of the ulterior purpose and the way in which it affected the Convention’s basic values (see Merabishvili v. Georgia, para. 307, for an application see Ukraine v. Russia (re Crimea), paras. 1376 et seq., an extensive assessment of the Court’s practice can be found here). In other cases, the Court analysed whether the case belonged to an established pattern of misuse of power, which could have played a role in this case too given the Court’s findings on political repression in Russia in its recent case-law (see inter alia Anti-Corruption Foundation (FBK) and others, paras. 142, 145).

Conclusion

The Court may have been reluctant to engage Art. 18 given the probability of the allegations against the applicant and the nature of the offences charged. However, the way in which it proceeded in the assessment of Art. 18 is unconvincing. The Court relied too heavily on the existence of a reasonable suspicion, used the evidentiary weight of political statements in a way that disadvantages applicants, and left aside several pieces of contextual evidence, including a campaign it had itself recognised in previous judgments. In doing so, the Court did not sufficiently consider the complex reality of politically motivated prosecutions that can appear in various forms, thereby limiting the ability of Art. 18 to uncover more nuanced or seemingly genuine cases of political justice.