The European Court of Human Rights says Alexei Navalny is innocent because he cannot be convicted on the word of an accomplice. We disagree and we suspect that most prosecutors and police forces around the world would also
This post first appeared on Russia Insider
The European Court of Human Rights has found in Navalny’s favour in the Kirovles case.
Alexei Navalny is a liberal opposition activist who made a name for himself as an anti-corruption campaigner.
In July 2013 he was convicted of defrauding a timber company called Kirovles of part of its timber in a scam he arranged with his partner Ofitserov in association with the managing director of the company, who is a man called Opalev.
Navalny in large part - though not entirely - was convicted on the evidence of Opalev, who agreed to give evidence against Navalny after admitting his own guilt in a plea bargaining arrangement.
I analysed the case exhaustively back in 2013 and concluded that not only was Navalny guilty, but that in Britain he would have been found guilty on the same facts.
The European Court of Human Rights in a judgment that is surprisingly short has however decided otherwise, saying that Navalny did not have a fair trial because the prosecution was wrong to rely on the uncorroborated evidence of Opalev following his confession of guilt in a plea bargain arrangement in separate proceedings.
There is no evidence Opalev offered or was induced to give evidence against Navalny as part of his plea bargain, and the European Court of Human Rights does not say he was.
The European Court of Human Rights incidentally refers to Opalev throughout its Judgment as "X" even though he gave his evidence publicly and his name and identity has never been any sort of secret in Russia or anywhere else.
I stand by my original view.
Going through the points made in the judgment, firstly Opalev’s evidence is not uncorroborated and the European Court of Human Rights is wrong to say it is; secondly the claim that it is somehow wrong to rely on the evidence of a co-conspirator who has implicated his accomplices would surprise most prosecutors; thirdly the fact Opalev was convicted in separate proceedings was complained about by no-one at the time and is hardly uncommon, and lastly the fact another court found Opalev guilty and cited on the basis of his plea Navalny and Ofitserov as his accomplices was not binding on the court that tried Navalny and Ofitserov, and was not treated by that court as if it was.
Frankly these arguments have something of the look of clutching at straws.
The reality is that since the European Court of Human Rights - to the huge embarrassment of Western governments - found in favour of Russia in the first series of Khodorkovsky cases, the trend in its judgments has been increasingly to find against Russia in subsequent cases.
This actually began with the Khodorkovsky case itself, where the European Court of Human Rights made an unexpectedly and excessively large $2 billion award to Khodorkovsky’s shareholders, which seemed to fly in the face of its own previous judgments.
I would add that the speed with which the European Court of Human Rights has heard Navalny’s case is remarkable - within three years of his last appeal - all the more so given that he was not sent to prison.
That strongly suggests that someone was determined to have his case decided in his favour as quickly as possible.
The Russians for their part have responded to the trend of judgments in the European Court of Human Rights against them by passing legislation that reaffirms that it is their own Constitutional Court - not the European Court of Human Rights - that has the final say on cases of this sort in Russia.
It remains to be seen whether the Russians decide to appeal this decision to the appellate body of the European Court of Human Rights. Given the trend of decisions against them in the European Court of Human Rights I suspect they won’t bother. Far more likely is that in accordance with their new legislation they will simply refer the decision back to their own Constitutional Court.
There is an increasing head of steam in Russia to quit the Council of Europe of which the European Court of Human Rights is a part, and which the Russians have come to see as incurably hostile to them. Judgments like this in Navalny’s case can only accelerate that process.
This post first appeared on Russia Insider
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