Navalny is dead and the EU's human rights sanctions regime must now show its reach

On Friday 16 February the Federal Penitentiary Service of the Russian Federation announced that Alexei Navalny had died in penal colony IK-3 at Kharp, in the Yamalo-Nenets region, north of the Arctic Circle. The service said that he had felt unwell after a walk, had lost consciousness almost at once and had not responded to resuscitation. He was 47. He was serving a 19-year sentence for extremism handed down in August 2023[1]. His mother was refused access to the morgue, and Reuters reported that she was told the cause of death was "sudden death syndrome" and that the authorities would keep the body until their investigation was complete[2].

We are the generation that watched Navalny's films on YouTube before we could vote. His death in custody concerns us as Europeans for a precise reason. The Union has told its citizens since 2020 that it has a legal instrument against exactly this kind of abuse. The instrument now has its test case.

What the Union has said and what it has done before

The reaction from Brussels was fast and unusually direct. On 16 February Ursula von der Leyen and Josep Borrell said in a joint statement that Navalny had been "slowly murdered by President Putin and his regime" and called on the Russian authorities to establish all the facts around his death[3]. On 19 February the High Representative issued a statement on behalf of the Union. It says that "the ultimate responsibility lies with President Putin and the Russian authorities". It demands that Russia allow an independent and transparent international investigation into the death. It calls for the release of other political prisoners, naming Yuri Dmitriev, Vladimir Kara-Murza and Ilya Yashin, and it promises to "impose further costs for their actions, including through sanctions"[4].

The same day Yulia Navalnaya attended the Foreign Affairs Council. Borrell told reporters on arrival that he would propose renaming the EU Global Human Rights Sanctions Regime as the "Navalny Human Rights Sanctions Regime". He said that Member States would propose sanctions against those responsible and that the measures could extend to the institutional structure of the Russian penitentiary system[5]. Navalnaya said in a video message that she would continue her husband's work. Member States are also preparing a thirteenth package of sanctions on Russia, due in the coming week[2].

The Union has used the regime against Navalny's jailers before. The Council adopted the Global Human Rights Sanctions Regime on 7 December 2020, by Council Regulation (EU) 2020/1998 and a parallel Council Decision[6]. The regime covers genocide, crimes against humanity and serious human rights violations, including torture, extrajudicial killings and arbitrary detention. Listed persons face a travel ban and an asset freeze, and persons in the Union may not make funds available to them. The Council lists names by unanimity, on a proposal from a Member State or from the High Representative[7]. The first use of the regime came on 2 March 2021. The Council listed four Russian officials over Navalny's arrest and prosecution: Alexander Bastrykin, head of the Investigative Committee, Igor Krasnov, the Prosecutor-General, Viktor Zolotov, head of the National Guard, and Alexander Kalashnikov, then head of the Federal Prison Service[8].

The Union has therefore already named the heads of the institutions that held Navalny. Three years later he has died in their custody.

Why the legal route through Strasbourg is closed and the sanctions route is open

The European Court of Human Rights ruled on Navalny's treatment long before his death. On 15 November 2018 the Grand Chamber held in Navalnyy v. Russia that seven arrests of Navalny at public gatherings had violated Article 5 and Article 11 of the Convention. It held, by fourteen votes to three, that there had also been a violation of Article 18, because the arrests were politically motivated and two of them aimed to suppress political pluralism[9]. The Court does not often say that a state used the law for an ulterior purpose.

That route no longer exists. On 15 March 2022 Russia notified the Secretary General of its intention to denounce the Convention, and on 16 March 2022 the Committee of Ministers adopted Resolution CM/Res(2022)2 ending Russia's membership of the Council of Europe[10]. No application about the death at Kharp can reach Strasbourg. The Union's sanctions regime is therefore the only European legal instrument that can attach a consequence to individual officials. It has no judge and no judgment. It has a list.

The timing adds a second test. Russia holds a presidential vote from 15 to 17 March. On 8 February the Central Election Commission refused to register Boris Nadezhdin, the only candidate who opposed the war, on the ground that about 15 per cent of his signatures were flawed[11]. A Union listing that reaches the prison service's officials would say something that a declaration cannot.

What we ask of the Council

We make four requests within the Council's existing powers.

The Council should adopt listings under Regulation (EU) 2020/1998 before the Russian vote opens on 15 March, and the listings should name the officials of IK-3 and of the Federal Penitentiary Service in the chain of custody for Navalny, as Borrell suggested on 19 February[5]. A listing after the vote would read as an afterthought.

The Council should decide Borrell's renaming proposal on its merits and should not let the name substitute for the list. A regime called after Navalny with no new Russian names on it would embarrass the Union more than the old name does.

The Council should treat the international investigation demanded in its statement of 19 February as a continuing obligation[4]. It should ask the High Representative to report to the Foreign Affairs Council each month on whether Russia has allowed one, and it should publish the answer.

The Member States should match the demand for the release of Kara-Murza, Yashin and Dmitriev with offers of protection for their families in the Union. Navalnaya's visit to the Council on 19 February was a gesture by the twenty-seven[2]. The families of the prisoners still inside need residence permits.