Alexey Navalny’s attempt to overturn the decision of Russia’s Central Election Commission that he is ineligible to stand in Russia’s Presidential election in March was rejected today by Russia’s Supreme Court.
The Central Election Commission, headed by Ella Pamfilova, ruled unanimously that Navalny is ineligible to stand for election because of a previous unspent conviction for which he has received a suspended prison sentence.
The relevant legal provision would appear to be Article 3(5) of the Law on the Election of the President of the Russian Federation.
This is a Yeltsin era law and its relevant provision reads as follows
5. A citizen of the Russian Federation found incapable by a court or kept in places of confinement under a court sentence shall have no rights to elect or be elected President of the Russian Federation.
This is clear enough, with the Law granting the Central Election Commission no leeway to set the provision aside.
Navalny’s call to the Central Election Commission asking them to set the provision aside was therefore bound to fail. The Central Election Commission would have acted unlawfully if it had agreed to do it, almost certainly exposing itself to a legal challenge had it done so.
In light of this it is impossible to see how Navalny’s Supreme Court challenge could have succeeded, and of course it has not done so.
These simple facts seem to be lost on the overwhelming majority of Western commentators who have spent the last few weeks discussing Navalny’s foredoomed Presidential bid and debating whether or not he would be “allowed” to stand, and who persist in reporting since the decision of the Central Election Commission that the Russian authorities have “banned” from Navalny from standing in the election.
Navalny has not been “banned” from standing in the election. He cannot be “banned” from standing in an election he was legally ineligible to stand in in the first place.
Once again Western commentators who continuously demand that Russia abide by the “rule of law” in practice demand that Russia disregard its own law in favour of whatever individual the West chooses to support at any particular time.
That of course does not “support the rule of law in Russia”. It works to undermine it.
Western commentators are on stronger ground when they say that the European Court of Human Rights overturned Navalny’s first conviction in the Kirovles case – the case in which he has received his suspended sentence – saying that the case against Navalny was politically motivated, having supposedly been brought against Navalny at the instigation of Alexander Bastrykin, the powerful head of Russia’s Investigative Committee, in retaliation for allegations of corruption Navalny had previously made against Bastrykin.
The Russian courts have however retried Navalny in the Kirovles case on the same charge – as they are legally entitled to do – and have re convicted him all over again on the same facts.
Though understandably enough this has come in for much criticism, the Central Election Commission is not a court, and it is not in a position to go behind this decision of the court.
As it happens I took a strong interest in the Kirovles case and conducted an exhaustive analysis of it at the time of the first case.
I reached the clear conclusion that if Navalny had been prosecuted before an English court on the same facts he would have been found guilty of theft, which is essentially the same offence as the one the Russian court has now twice found him guilty on. Moreover I strongly doubt he would have escaped with only a suspended sentence.
As for Bastrykin’s involvement in the case, that was merely to scold his investigators for their timidity in acting against Navalny despite the strength of the case against him.
The decision of the European Court of Human Rights to set aside Navalny’s conviction and to criticise his prosecution as politically motivated was in my opinion straightforwardly wrong, being merely the latest example of the “lawfare” which is becoming increasingly common in international court cases involving Russia.
The European Court of Human Rights is known to have come under a great deal of criticism from Western governments and Western commentators because of its repeated Judgments against the Russian oligarch Mikhail Khodorkovsky – another hero of Western governments and of the Western media- who it found had indeed committed the gigantic tax fraud the Russian authorities say he did. Frankly the Judgment in the Kirovles case looks to me like an attempt to counter this criticism.
That this was so is strongly suggested (at least to me) by the European Court of Human Rights’ very different approach in the second criminal case the Russian authorities have brought against Navalny, a case involving an alleged fraud by Navalny and his brother of Yves Rocher Vostok, the Russian subsidiary of the French Yves Rocher company.
To anyone familiar with the facts of the Kirovles case the facts of the Yves Rocher case look very similar and show an almost identical pattern of behaviour.
In both cases a private company was set up to provide a service previously provided by a publicly owned company, in the first case the Kirovles timber company, in the second case Russian Post.
In the Kirovles case Navalny and in the Yves Rocher case his brother had no visible role in the private company but in both cases they in fact controlled it.
In both cases there was an alleged abuse of public office, in the Kirovles case by Navalny himself acting in his capacity as an unpaid adviser of the Kirov Regional Government, in the Yves Rocher case by his brother acting in his capacity as a manager of Russian Post.
In both cases this was done to obtain lucrative contracts for the private company on favourable terms. In both cases this led to an economic loss, in the first case to Kirovles, in the second case to Yves Rocher Vostok.
In both cases this loss would not have arisen if the contracts had not been made.
As in the Kirovles case the European Court of Human Rights in the Yves Rocher case set aside Navalny’s conviction and the Russian court’s Judgment against him and his brother. However in this case the panel was far less sympathetic to Navalny than the Court’s panel was in the Kirovles case, as its brief Judgment makes clear.
Not only did the panel flatly refuse to say that the Yves Rocher case was politically motivated (hiding behind a technicality to avoid even looking at the issue) but it also refused to look in any detail into Navalny’s claims that the trial was unfair and rejected other claims he brought as completely unfounded.
The panel moreover limited itself to setting aside the Russian court’s Judgment on a very narrow point: that the contract between the Navalny controlled private company and Yves Rocher Vostok appeared to be lawful on its face, and appeared to have been performed lawfully.
Whilst that may be true, it ignores the circumstances in which the contract was made, which is where the fraud (if it exists) presumably lies. It is after all hardly unusual for thieves and fraudsters to conceal their activities behind a facade of legality, and that presumably is what the Russian authorities and Yves Rocher Vostok allege happened in this case.
That the panel knows this perfectly well and knows that there is more to the case than it chose to see is shown by these otherwise gratuitous words about Navalny which appear in its Judgment
58. In the light of the above-mentioned principles,the Court notes that it is not its task to rule on the applicants’ individual criminal responsibility, that being primarily a matter for the domestic courts, but to consider, from the standpoint of Article 7 § 1 of the Convention, whether the acts the applicants were convicted of fell within a definition of a criminal offence which was sufficiently accessible and foreseeable.
(bold italics added)
These words seem to hint at a criminal side to Navalny’s and his brother’s behaviour despite the Judgment setting aside their conviction, with the panel’s reference in another part of the Judgment to the fact that the Russian authorities intend retry the case perhaps hinting at the same thing.
Claims that the European Court of Human Rights awarded Navalny and his brother record compensation in the case are incidentally untrue. The Court actually refused most of their claims for compensation and only awarded them compensation of 10,000 euros each. The much larger sums some have cited conflate the compensation the Court awarded with the payment of legal costs, which they were entitled to because they won the case.
All in all my impression of the Judgment is that the European Court of Human Rights in the face of Western criticism once more bent over backwards to find in Navalny’s favour but on this occasion could not wholly conceal its disquiet at doing so.
Others of course are at liberty to disagree. However saying that does bring me to what is for me the abiding mystery about Navalny.
This is the sympathy some people still have for him, which turns up in all sorts of unexpected places, despite his deeply unattractive personality as exposed by his behaviour in the two cases which have been brought against him, and in the straightforwardly racist comments he makes from time to time.
In the Kirovles case on the most generous reading Navalny abused his position as an unpaid adviser of the Kirov Regional Government to get Kirovles to hive off part of its business to a private company owned by a friend of his even though he had no authority or remit to do this. Moreover when complaints about this and about how it was losing Kirovles money began to appear, his first response was to try to get those who were bringing the complaints sacked. Afterwards, when this failed and the complaints continued, he fled the scene without either resigning his office or explaining himself, leaving behind him a burgeoning financial scandal and a pile of unanswered questions.
As for the Yves Rocher case, here is how the European Court of Human Rights summarises the actions of Navalny’s brother, who it is agreed carried out his actions in close cooperation with Navalny himself
The trial court found in particular that the applicants had set up a “fake company”, GPA, with the intention to use it as an intermediary to offer services to two clients of Russian Post, MPK and Yves Rocher Vostok. It held that Oleg Navalnyy had taken advantage of insider information that Russian Post had ceased to provide the companies with certain services and had convinced those clients to use GPA as a substitute; that he had misled the clients about GPA’s pricing policy and its relationship with Russian Post, thus depriving them of the freedom of choice of service providers; that he had promoted his company’s services while knowing that it would have to subcontract the work to other companies; and that GPA had retained the difference in price between what MPK and Yves Rocher Vostok paid for its services and what GPA paid to its subcontractors.
Note that the Judgment of the European Court of Human Rights does not dispute or cast doubt on any of this.
Even those who profess to see nothing criminal in this behaviour should admit that it is at the very least manipulative and exploitative.
In the Kirovles case Navalny used his position to get Kirovles to give part of its business to the company of a friend of his at a loss to itself.
In the Yves Rocher case the Navalny brothers used Oleg Navalny’s position as a manager of Russian Post to trick Russian Post’s clients into obtaining services from a company the Navalny brothers controlled that were actually being provided by others at a lower cost than the clients were being charged.
I am at a total loss to see how this manipulative and parasitical behaviour – exploiting public office and the hard work of others to make an unearned gain – is remotely appropriate behaviour for someone who poses as an anti-corruption campaigner and as an entrepreneur.
Is this really the sort of behaviour one wants to see from someone who pitches himself as a future President of Russia?
Back in the 1980s Boris Yeltsin rode to power on the claim that he was the implacable enemy of corruption and unearned privilege. Naive belief in this claim blinded people to the obvious flaws in Yeltsin’s personality as well as to his well established incompetence as a manager. The result was calamitous, with corruption and unearned privilege increasing under Yeltsin’s rule to levels never seen before in Russia.
It is unnerving that in Navalny’s case there still seem to be people sufficiently blinded by his self-serving anti-corruption rhetoric to make the same mistake all over again.
Having said this, one should not make the mistake of exaggerating Navalny’s popularity and importance. Whereas Yeltsin in the 1980s managed to achieve a critical mass of support amongst the Russian population, there is no evidence of anything like that happening in Navalny’s case.
Though Navalny continues to be heavily promoted by the Western media, there is no evidence that support for him extends beyond Russia’s tiny and devotedly pro-Western liberal community, which continues to be overwhelmingly concentrated in Moscow.
Even in Moscow the extent of Navalny’s support is exaggerated. The much cited 27% he won in the 2013 Moscow mayoral election is misleading being entirely the product of an unexpectedly low 33% turnout in the election, which exaggerated the appearance of his support because of the higher turnout of his more highly motivated followers.
In reality the proportion of Moscow’s electorate who voted for Navalny in the 2013 Moscow mayoral election was below the normal range of 11-15% of the Moscow electorate which can usually be relied upon to vote for a liberal candidate. At 9% it was significantly below what liberal candidates like Yavlinsky and Prokhorov had achieved in previous elections (see my detailed discussion of the 2013 Moscow mayoral election here).
Outside Moscow support for Navalny falls away. Contrary to what the Western media claims there has been no evidence of any great groundswell of support for him across the country over the last year. The last (legal) protests he staged in support of his Presidential bid attracted no more than 10,000 people across the whole country, a fact which shows how limited support for him really is.
Which brings me back to the subject of Navalny’s Presidential bid.
Navalny is by training a lawyer and it beggars belief that he has not been aware all along of what Ella Pamfilova the liberal former Yeltsin era minister who heads Russia’s Central Election Commission pointed out to him, which is that he is ineligible to stand for election as Russia’s President.
Notwithstanding this Navalny has for months conducted a Presidential campaign and solicited donations from the Russian public in support of a Presidential bid he must have known would never take place.
This sort of deceitful and manipulative behaviour – so similar to his behaviour in the Kirovles and Yves Rocher cases – is bad enough in itself, and ought in any rational world to put paid to Navalny’s reputation as a fearless anti corruption campaigner. However in this case it gets worse.
It appears that rather than close down his campaign and refund the money donated for a Presidential bid which can never happen Navalny instead intends to use the money and the organisation he has built up to campaign for an election boycott. That this is not the purpose for which the money was given appears not to bother him or his admirers at all.
As it happens I suspect that creating a pretext for a campaign to boycott the election was the true purpose of Navalny’s Presidential bid all along.
I also suspect that it was the true reason why the Western media and Western governments have been so noisily backing his bogus Presidential bid: not because they see Navalny as a serious challenger to Putin but because they want to use Navalny’s inevitable exclusion from the election as a pretext to cast doubt on its legitimacy and on the legitimacy of Putin’s re-election when (as everyone expects) it happens.
Whilst that tactic will no doubt work with some people in the West (though I question how many people really care about an election in Russia), I doubt it will impress many people in Russia itself, where most people have long since become wise to this sort of thing.
However it shows yet again that whilst no proof of Russian meddling in any Western elections has ever come to light, Western meddling in Russian elections is not just unashamed and continuous, but happens openly in full light of day.