The ECHR on disjointed trials and res judicata

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February 11, 2017 by AK

Wednesday’s predictable but nevertheless bizarre re-conviction of Navalny and Ofitserov makes one wonder how the court managed the seemingly insurmountable barriers such as the absence of the corpus delicti and the ECHR’s ruling. It’s especially puzzling if, as Navalny has observed, at least some of the ruling was pasted straight from the 2013 original, complete with the typos.

I have written about the case more than once, e.g., here, here, and here, in the reverse order of appearance. Some of that, I believe, bears repeating, not least the ECHR’s conclusions.

As a starting point, there is no evidence any crime was committed at all. The prosecution has claimed that Navalny and Ofitserov conspired with the then CEO of Kirovles, Opalev, in order to defraud Kirovles in this way: Opalev would sell timber at below-market prices to a firm controled by Navalny and Ofitserov, which would resell it at a profit, which would be divided among the three conspirators. However, the prosecutors have failed to show that timber was sold at a systematic discount to the market: the fact of the crime is missing.

The ECHR generally tries to avoid going into the merits of cases under review whenever possible. Its ruling focuses on a major procedural fault, reminding the courts in member countries that taking this shortcut is unacceptable. Prior to indicting Navalny and Ofitserov, the prosecutors forced Opalev into admitting guilt in exchange for a non-custodial sentence. Opalev was then subjected to a fast-track trial, involving no critical examination of evidence. The judge’s ruling from that trial, essentially a copy of the indictment, implicated Navalny and Offitserov as Opalev’s accomplices, even though neither took any part in Opalev’s trial. At the 2013 trial of Navalny and Ofitserov, that ruling was accepted as an unquestionable truth. The ECHR objected (X stands for Opalev):

The Court has previously highlighted the first and most obvious guarantee to be secured when co-accused are tried in separate sets of proceedings, notably the courts’ obligation to refrain from any statements that may have a prejudicial effect on the pending proceedings, even if they are not binding…

The second requirement for the conduct of concurrent proceedings is that the quality of res judicata would not be attached to facts admitted in a case to which the individuals were not party…

Clearly, neither condition was met at the 2013 trial. How could it be different at the 2017 trial? There’s no fix for that glitch other than starting from scratch, beginning with the key question, was the crime invented out of thin air?

…in the present case no finding of fact made in the proceedings against X could have been admitted in the applicants’ case without full and proper examination at the applicants’ trial. Moreover, the procedure followed by the court in X’s case had been accelerated, and the establishment of facts had been a result of plea-bargaining, not the judicial examination of evidence. Consequently, the facts relied on in that case had been legally assumed rather than proven. As such, they could not have been transposed to another set of criminal proceedings without their admissibility and credibility being scrutinised and validated in those other proceedings, in an adversarial manner, like all other evidence.

This is nicely stated and sums up the problem of judicial fact-smuggling. The Russian legislature has actually reacted to this criticism: facts “found” at fast-track trials and trials based on plea-bargaining are no longer automatically accepted by other courts. However, it does not solve the fundamental problem of disjointed trials: the accused still cannot challenge evidence imported from trials at which they were not represented.

As I’ve said before, Italian prosecutors and courts used a similar setup to convict Amanda Knox and Raffaele Sollecito in 2009 and 2014 (before both were finally acquitted in 2015). The principal difference is that the crime was actually committed. However, Rudy Guede, who alone left his traces in the victim’s room, managed to get a relatively short sentence (16 years) because he resorted to a fast-track procedure and because the prosecution agreed he was not the only culprit. The judge at that trial concluded – without a regular fact-finding procedure such as witness questioning – that Guede had acted with accomplices. That poorly founded claim complicated Knox’s and Sollecito’s position enormously, destroying the presumption of their innocence. I wonder if Italy, like Russia, has adjusted its procedural code since the EHCR ruling.


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