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The Navalny case and Russia’s challenge to the European Court of Human Rights

By reconvicting the Russian liberal activist Alexey Navalny in a case where the European Court of Human RIghts had set aside his previous conviction, the Russian authorities are issuing a challenge to the European Court of Human Rights.

The fact that a Russian court has for the second time convicted the Russian liberal opposition activist Alexey Navalny of embezzlement in a case involving the Kirovles timber company represents a head-on challenge by the Russians to the European Court of Human Rights.

I researched the Navalny/Kirovles case exhaustively at the time of Navalny’s first conviction in 2013.  I concluded that he was almost certainly guilty as charged, and I have held to that view ever since.  In fact I could not see anything particularly special about the case, which looked to me like a straightforward case of theft, which was supported by a mountain of evidence.  Anyone who wants to plough through my detailed and at times very technical discussion of the case can find it here.

The European Court of Human Rights however ruled otherwise, and in a painstaking Judgment that seemed to me to go to extraordinary lengths to find technical grounds to say that Navalny’s trial was unfair, found in his favour.  (PDf versions of this Judgment can be easily found on the internet by googling “Navalnyy versus Russia”).

Suffice to say that the grounds for claiming that the trial was unfair – which mainly related to the use in the trial of the evidence of the lead prosecution witness – place such a high bar that I doubt that many trials in any country would meet them, and do not to my mind show unfairness, whilst other parts of the Judgment read more like a newspaper column than a reasoned court Judgment.

That the Russians were clearly angered by this Judgment is shown by the decision they subsequently took.  Instead of simply setting Navalny’s conviction aside, they decided to retry him on the same charge.  Tried on the same law and on the same facts, Navalny has – predictably enough – once more been convicted on the same charge for the same offence, and has received the same sentence.

I have no doubt that the Russians saw the Judgment of the European Court of Human Rights as politicised.  In my lengthy discussion of Navalny’s case I set out the steps the Russian authorities took to make his trial as ECHR compliant as possible.  Not only was Navalny allowed to question the witnesses at extravagant length but all his arguments were carefully considered and the prosecution (rather than his own lawyers) even appealed the Judge’s decision to send him to prison after his conviction when he was actually entitled to bail.  Moreover the one part of the case that baffled me and where political interference was manifest – the decision to give Navalny a suspended sentence rather than a prison sentence for what was by any objective measure a serious crime – looks with hindsight like an attempt to delay proceedings in the European Court of Human Rights until after Russia’s two highest courts – the Supreme Court and the Constitutional Court – had been given an opportunity to review the case.

In the event not only did the European Court of Human Rights still say Navalny’s trial was unfair, but despite the fact that he was only given a suspended sentence and was not sent to prison, it decided to prioritise his case, thereby ousting the Russian Supreme Court and the Russian Constitutional Court from reviewing it.

I have recently discussed the steps the Russians are taking to limit the European Court of Human Rights’ ability to meddle in their court cases.  One particular issue which they are known to have raised in discussions with the President of the European Court of Human Rights was the question of its ‘prioritising’ Russian cases (like Navalny’s) when there are no grounds to do so.  At the same time the Russians have continued to take a conciliatory line, saying that they still value the European Court of Human Rights and wish to remain within its jurisdiction.

It is not difficult to see the nature of the challenge that is now being made.  With the European Court of Human Rights having declared Navalny’s previous trial unfair, the Russians are now daring it to do the same now that they have re-convicted him for the same offence, with the implicit threat that they may reconsider accepting its jurisdiction if it persists in acting in what they see as a hostile and politicised way.

For the European Court of Human Rights this is a big challenge.  With Britain now saying that it will withdraw from its jurisdiction, and with Turkey implicitly threatening to do so with its talk of reintroducing the death penalty, the European Court of Human Rights does not want to lose Russia, and see the territory that accepts its jurisdiction shrink even further.

The President of the European Court of Human Rights recently travelled to Russia and it is known that he held confidential discussions there.  How the European Court of Human Rights responds to Russia’s challenge in Navalny’s case will show whether or not following those discussions the European Court of Human Rights is prepared to compromise.

Lastly, before ending this discussion about Navalny I want to address one particular claim he has been making today, which the Western media has picked up.

Navalny’s latest conviction has nothing to do with the 2018 Russian Presidential election.  Not only does it seem that a suspended sentence – such as the one Navalny has again received – does not disqualify a candidate from standing in that election, but the 0.70% of the vote that Parnas – the party most closely identified with Navalny – received in the recent Duma elections shows that he is not remotely a credible candidate.

In my opinion the case just brought against Navalny is no longer really about him.  Such political credibility as he might have had back in 2013 has long gone, and I doubt anyone in Moscow really cares about the Kirovles case anymore.

Rather it is Russia’s relationship with the European Court of Human Rights which is now the issue.  Unsurprisingly that is not something I expect most Western commentators to report on or even understand.

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Alexander Mercouris
Editor-in-Chief atThe Duran.

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