February 24, 2016 by AK
The European Court of Human Rights has unanimously ruled that the 2013 trial of Alexei Navalny and Pyotr Ofitserov was unfair. The principal reason was the prejudicial use of findings from another, fast-track trial – in which they were not represented – against the defendants.
I discussed the judicial trap set up for Navalny and Ofitserov – res judicata à la russe – in these posts (drawing parallels with Italy). I also wrote about a similar scheme in an apparently fabricated case, still ongoing, against two Ukrainians on trial in Russia.
To make reading long quotes more convenient, I am using the dark blue color to mark quoted text by ECHR judges. From the ECHR’s ruling in Navalny and Ofitserov v. Russia:
However, the Court came to the conclusion that the two basic requirements for guaranteeing the fairness of proceedings, when co-accused were being tried in separate sets of proceedings, had not been fulfilled.
Notably, contrary to the courts’ obligation to refrain from any statements that might have had a prejudicial effect on the pending proceedings, the trial court convicting X had worded its judgment of December 2012 in respect of X in a manner that no doubt could remain as regards the applicants’ identities or their involvement in the crime of which X was convicted. It had expressed its findings in terms which could not be defined as anything but prejudicial.
Second, contrary to the courts’ obligation not to treat as res judicata – that is, a matter already judged – any facts admitted in a case to which the applicants had not been party, the circumstances established in the judgment against X had in effect had the force of res judicata.
Three judges, including a Russian judge, concurred in the majority ruling on the unfairness on the trial but dissented on the issue of politically-motivated prosecution, which the court’s majority chose not to investigate. The three dissenters argue the court should have taken it seriously:
The criminal proceedings brought against him [Navalny] were not simply unfair and thus in violation of Article 6 § 1; there is also an arguable claim to the effect that the proceedings contained an abusive element. The domestic criminal proceedings at issue subjected a government-critical, prominent and politically active person to criminal prosecution in a manner that the majority in this case found to have “arbitrarily and unforeseeably construed [the domestic law] to the detriment of the applicants, leading to a manifestly unreasonable outcome of the trial” (see paragraph 115 of the judgment). The effect of such a distortion of the law – the singling out of dissidents in order to silence them by means of criminal proceedings – is precisely the sort of abuse from which Article 18 is intended to provide protection.