Res judicata, Russian style

As I’ve said before, the fact-finding part of the Navalny trial was not an all-out farce – as the defense cross-examined the prosecution’s witnesses and called its own, it demonstrated that the state lacked a case against Navalny’s and Ofitserov’s. It was not the fault of the defense that the judge paid no attention to what transpired and rubber-stamped the prosecution’s indictment – presumably as ordered by whoever is giving orders to judges in Russia these days.

But I have also said the indictment itself was erroneous because there was no crime committed. Of course Russian prosecutors can invent a crime out of thin air no matter what, but there’s one bug in Russian legislation to help their creative effort. Namely, Article 90 of the Criminal Procedure Code (as amended in 2010), says:

Facts established by a legally binding criminal verdict, or by another legally binding ruling in the course of civil, arbitration or administrative litigation, shall be accepted by courts, prosecutors and investigators without additional verification.

But there’s a caveat:

At the same time, such verdict or ruling may not predetermine the culpability of persons who were not previously parties to the criminal case in question.

The problem is that in some cases, an erroneous finding from somebody’s else’s trial – in which you had no say whatever – can trigger a criminal case against you and hamstring your defense. The Constitutional Court tried to resolve this contradiction in its 2011 ruling but focused mostly on the impact of civil cases on criminal trials. Note that before 2010, courts were allowed to re-check on other courts’ factual findings.

Now suppose the prosecutor’s office wants to cook up a case against a successful businessman. As it happens, the first stage is finding signs of a pecuniary crime. Some sort of fraud, embezzlement, tax evasion, or bribery will do. Stage two is identifying accessories – it’s important to claim it was a conspiracy. Stage three is figuring out the weak link among those targeted – the one the most likely to accept a plea bargain. As a rule, it’s not the businessman they’ve been after but could be one of his employees or business partners.

Forced into a corner, the weak link will say anything the prosecution wants in exchange for probation. A fast-track trial follows and results in a verdict, which includes details of the crime as “established” by the court. By the nature of the fast-track trial (also a new development in Russian law), the verdict can but parrot the prosecution’s theory (for the defense agreed not to object). Now the prosecutors have “facts” – all thought up of course – that will have the authority of the Holy Writ at the next trial, this time of the Big Fish, the businessman they’ve been after from the beginning.

And this is how the prosecutor’s office went after Navalny and Ofitserov. They accused the CEO of Kirovles of selling to Ofitserov’s VLK at illegally large discounts, and the CEO accepted a deal in 2012. He did not go to jail, and the prosecution obtained a ruling saying that the CEO committed fraud as part of an organized group. Bingo! There’s no denying the crime itself anymore, no matter what your auditors say, Navalny!


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