Part 2. ALEKSEI NAVALNY – AN EXAMINATION OF HIS TRIAL AND CONVICTION

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Part 2. ALEKSEI NAVALNY – AN EXAMINATION OF HIS TRIAL AND CONVICTION
Published 28-07-2013, 08:04
On 8th December 2008 following a private meeting the Russian President Dmitri Medvedev nominated Nikita Belykh, a well known Russian liberal politician and former leader of the Russian liberal party the Union of Right Forces for the post of Governor of the Kirov Region in central Russia.  Belykh’s subsequent appointment set in train a sequence of events which on 18th July 2013 led to the conviction by the Kirov Regional Court of Aleksei Navalny, the well known Russian opposition politician and blogger, for conspiracy to commit embezzlement contrary to Article 160 of the Criminal Code of the Russian Federation.

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"Mercenary Intention”

Article 158 does not require that the thief actually gain financially from the theft merely that he have an intention to do so.  None of the three persons involved (Navalny, Opalev and Ofitserov) benefitted financially from the theft.  The reason is that despite acquiring KirovLes’s timber for less than its true value VLK did not trade at a profit.  Since VLK did not make a profit there was no profit to distribute to the three and no financial gain to be made.

Did Navalny and Ofitserov intend to gain financially from the theft?

As to Ofitserov there is no doubt.  Ofitserov was the owner of VLK.  As the owner of VLK he obviously intended to profit from his business.

As for Navalny he was never an owner or part owner of VLK and never held a post in that company.  The only evidence he intended to gain financially from the theft comes from Opalev.  Opalev’s evidence on this issue has however no independent corroboration. For that reason this has always seemed to me the weakest point in the prosecution’s case.   Though the prosecution was able to produce tape recordings of telephone conversations between Navalny and Ofitserov and copies of emails that passed between them there is no record in any of them of Navalny so much as hinting that he intended to profit personally from the arrangement between VLK and KirovLes.

The only facts that may suggest that Navalny did intend to profit personally from the arrangement are (1) Navalny’s decision to refuse an offer of a paid post with the Kirov Regional government, which may suggest he was expecting money from VLK and did not wish to be placed in a conflict of interest when this happened and (2) a fraught email exchange between Belykh and Navalny some time after these events in which Belykh facetiously calls Navalny "a timber tycoon”, which suggests that Belykh at the time believed that Navalny had intended to profit personally from the arrangement.  Both points are so weak the prosecution wisely did not use them though both facts would have been known to the Judge from considering the rest of the evidence.

The Judge nonetheless accepted Opalev’s evidence on this issue.  Given that he preferred Opalev’s evidence to Navalny’s on every other issue this is unsurprising.  The Judge was entitled to accept Opalev’s evidence, which is consistently corroborated on other issues, and to reject Navalny’s, which is regularly shown to be either unconvincing or simply wrong.

Speaking personally, I would have been prepared to give Navalny the benefit of the doubt on this question and decide that he was involved in setting up the arrangement between Opalev and Ofitserov (as he clearly was) for altruistic reasons, out of some misguided belief that it might genuinely benefit KirovLes, were it not for the rest of his conduct in the case.  His passionate defence of the arrangement both at the time and later and the content of his conversations with Ofitserov speak of someone with a personal stake in the arrangement going well beyond what one would reasonably expect from someone who had set it up for purely disinterested or altruistic reasons whilst it is difficult to understand why he would say so many things in his defence that are either simply wrong or untrue if his motives were innocent.

Summary

Having examined the evidence in the case, it is clear that it does substantiate the charges brought against Navalny and Ofitserov.  The Judge accepted the prosecution’s evidence and I can see no reason why he should not have done so.  It appears that the charges were properly made out and there is no reason to think that the verdict is not correct.

Fair Trial?

The trial was conducted with all the bullying and disrespect for the Judge I have come to recognise as routine in cases of this sort in Russia.

Prior to the commencement of the case the Judge was threatened with lustration.  He had to face repeated accusations throughout the trial of bias and demands that he recuse himself.  It was also made clear to him that if he decided against Navalny a complaint would be made against him to the European Court of Human Rights.  Navalny chose to ignore the Judge’s order to attend Court on a particular date, choosing instead to meet with the Investigative Committee to discuss a different case and to attend a political meeting, despite being previously told by the Judge that the Court would take steps to resolve any problems with the Investigative Committee caused by his non attendance at the meeting.  Navalny then publicly accused the Judge of complicity with the Investigative Committee in a plot against him.  He also publicly accused the Judge of economic illiteracy when the Judge rejected the evidence of his experts on timber prices.  The trial ended with a political speech from Navalny criticising Russia’s political and legal system, which had put him on trial, and making a thinly veiled call for revolution whilst largely failing to address the substance of the case against him.  The best that can be said of this behaviour is that it never descended to the level of outright farce as was the case in the Pussy Riot case.

Was the trial however actually unfair?

Article 6 of the European Convention of Human Rights of which Russia is a signatory says the following:

"1.       In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair trial and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Judgment shall be pronounced publicly by the press and public may be excluded from all or part of part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2.         Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.         Everyone charged with a criminal offence has the following minimum rights

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and the facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

Article 7 of the European Convention of Human Rights also says

"1.       No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.         This article shall not prejudice the trial and punishment of any person for any act or omission, which at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations”

Navalny was tried before a properly constituted court of law on a charge under Article 160 for an offence of embezzlement which is the same or very similar to offences universal to all criminal jurisdictions and specifically in the case of Britain to a charge of theft contrary to Section 1(1) of the Theft Act 1968.  There was substantial evidence to support the charge.

The media fully reported the trial.  The trial was filmed and the film was shown on the internet. The public were admitted to the Court room including some of Navalny’s supporters who appeared sporting T shirts emblazoned with the words "Putin is a thief” (something which would certainly not be tolerated in a British court room).  Navalny publicly commented on the trial at length whilst it was still underway writing about it on his own blog and sending out tweets via his mobile phone including in direct disobedience of the Judge’s order whilst the final Judgment was being read out.

Navalny was free on bail both before and during the trial.  He was represented by lawyers of his choice.  Both he and his lawyers were provided with full details of the case before the trial.  There is nothing to suggest any lack of preparation on their part.  He was given complete freedom to question and cross examine the prosecution’s witnesses, choosing to do so himself whilst wisely leaving legal argument to his lawyers.  He was allowed to call his own witnesses and did so.  The Judge did refuse to admit his expert evidence on timber prices but gave a reasoned Judgment explaining his reasons for this and as I have said he was fully justified in doing so.  The Judge also disallowed some of his other witnesses on grounds their evidence had no relevance or repeated what had already been said.  The Judge has the right to do this and there is nothing to suggest this weakened Navalny’s defence.  The trial was held no more than a few months after the charge was brought and the sentence handed down after the verdict is within the range provided by Article 160.

The only issue is the independence and impartiality of the Judge.

The Judge, Sergei Blinov, is a local Judge appointed in the proper way who tried a case in his district, which is where the alleged crime was committed.  There is nothing about the way the Judge was chosen to try the case to suggest he was not independent or was unfit to try the case.  As a local Judge in the district where the alleged crime was committed he was the obvious person to try it.

Blinov is said to be very prosecution minded and to have delivered guilty verdicts in the 130 or 150 cases (accounts differ) previous to Navalny’s that came before him.  However I have read nothing anywhere to suggest these convictions were wrong.  Besides the proper measure of the Judge’s impartiality in the case is his conduct of the case not his conduct of other cases about which nothing is known.

As to the Judge’s conduct of the case, he did occasionally reject defence applications but there is no reason to construe bias from this.  On several occasions when he did this he retired to his chambers to consider the defence’s application and then delivered a reasoned Judgment setting out in full his reasons for doing so.  On those occasions when I know something of his decisions they seemed to me to be correct.

I have already discussed the Judge’s decision to exclude Navalny’s expert evidence on timber prices and why I think it was correct.  The Judge allowed prosecution witnesses whose memory was faulty to have their memory refreshed or substituted from their written statements but I have never heard that the witnesses denied the truth of those statements and this is in line with international practice.  The witnesses for whom this was done anyway tended to be the less important ones.  The Judge also excluded other witnesses who Navalny wished to call for reasons I have already discussed.  As I have said he was entitled to do this and there is nothing to suggest that Navalny was disadvantaged by his doing so.  The Judge admitted evidence from witnesses whose statements gave the wrong address.  As the Judge surely correctly said there was no reason to exclude this evidence since there was no doubt about the existence of these witnesses.  The Judge admitted as evidence the tape records of Navalny’s telephone conversations with Ofitserov and the emails that passed between the two.  There is no doubt about the authenticity of these telephone records and emails (Navalny does not dispute them) or of their relevance to the case.  The admissibility of such evidence differs from country to country and is a question of Russian law.  I have no reason to think the Judge’s decision was wrong.  The Judge refused Navalny’s request that every tape record of his telephone conversations with Ofitserov be produced on the grounds this would exculpate him.  So far as I know Navalny never said precisely what was in these conversations that would exculpate him making this look like a fishing expedition in which case the Judge was right to refuse this request.

In summary I simply cannot see anything about the Judge’s conduct of the trial that would call into question his impartiality in the case.  On the contrary he seems to me to have bent over backwards to accommodate Navalny.  He did not for example cut short or interfere with Navalny’s lengthy and brutal cross examination of Bastrygina even though from accounts I have heard of it much of this cross examination was of doubtful relevance whilst it became increasingly circular as it went on with Navalny asking Bastrygina questions that went over ground that had already been covered.

The one curiosity about this case is that on the one occasion when the Judge is known to have made a mistake the action to correct that mistake was taken not by the defence but by the prosecution.  This happened after the verdict when the Judge mistakenly placed Navalny and Ofitserov in custody when they were still entitled to bail.  Though this is a breach of the Russian Code of Criminal Procedure and though this fact was pointed out to the defence lawyers by a lawyer who had been following the case they failed or refused to appeal it.  It was left to the prosecution to do so and to correct the Judge’s mistake (one which is apparently often made).

In conclusion there is absolutely nothing about this case that obviously stands out as suggesting that the Judge was not independent or impartial.  I am not an expert in Russian criminal procedure so I cannot definitely say none of his decisions were wrong.  If some of them were they will no doubt be set aside on appeal.  However there is nothing about the conduct of this case that renders this trial obviously unfair.  On the contrary everything  suggests a fair trial and I am sure the European Court of Human Rights will take the same view.

Disproportionate Sentence?

The rapporteurs of the Parliamentary Assembly of the Council of Europe have reported that even on the assumption that Navalny "made a mistake” the sentence he received was disproportionate.

The rapporteurs of the Parliamentary Assembly of the Council of Europe have also said that the charges against Navalny were unsubstantiated, which is obviously wrong.  Are they right to say however that his sentence is disproportionate?

If the rapporteurs of the Parliamentary Assembly of the Council of Europe believe that a 5 year prison sentence for a first time offender who pleaded not guilty for the offence of embezzling property worth $500,000, which is the crime for which Navalny was convicted, is disproportionate then they should explain this to the British authorities.  British sentencing policy as set out by the Sentencing Guidelines Council is that for a theft of an amount exceeded £125,000 (as in this case) or for more than £20,000 but involving a breach of trust of a high degree (as also in this case) the range of sentences for a first time offender who has pleaded not guilty is 2 to 6 years in prison, with the starting point being 3 years.

http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/theft_breach_of_trust/

This is exactly in line with the 4 and 5 year sentences imposed respectively on Ofitserov and Navalny.

It has been said that Navalny’s theft was on a relatively small scale and that others who have stolen far more than him have been able either to walk free or have received a lesser sentence.  Markin the spokesman of the Investigative Committee has come close to admitting as much.  It is in fact a commonplace that, as the philosophers say, the law is like a spider’s web, better at catching small flies than big ones.  However that is not a reason for giving relatively small time operators like Navalny a free pass.  Were that to happen the web would be catching no flies at all.

It is anyway a mistake to minimise the crime for which Navalny has been convicted.  This was a crime involving the theft of state property engineered by someone (Navalny) who as an unpaid adviser of the Kirov Regional government was in a particular position of trust.  It involved a high degree of deception and was carried out with the purpose of financial gain.  Navalny and Ofitserov both pleaded not guilty and Navalny especially conducted an exceptionally aggressive defence that continues to this day.  This involves attempts to discredit individuals such as Bastrygina who Navalny previously wanted to dismiss when she acted to stop him.

I do not believe that for this offence and on these facts Navalny would receive in Britain a sentence very different from the one he received in Russia.  I do not think this sentence is disproportionate on these facts and I am sure the European Court of Human Rights if asked will say the same thing.

Politically Motivated Prosecution?

The most common criticism of the case is that it is a selective and politically motivated prosecution intended to punish and silence Navalny for his opposition and anti corruption activities.

The relevant provision is Article 18 of the European Convention of Human Rights:

"The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”.

(Italics added)

Thousands of prosecutions on theft charges happen in Russia every year.  One cannot say that this is a selective prosecution because one of the defendants happens to be Aleksei Navalny.  The European Court of Human Rights has repeatedly said that the whole structure of the European Convention of Human Rights rests on the general assumption that public authorities in member states including Russia act in good faith.  A mere suspicion that the authorities use their powers for ulterior purposes is not sufficient to prove a violation of Article 18.  A very exacting standard of proof is applied.

This was a prosecution for a theft offence that was substantiated by a large body of evidence.  That in itself makes it very unlikely that the European Court of Human Rights will construe a political motive to this prosecution without clear evidence this was the case.  What evidence is there that this was the case?

Apart from a general assumption that any prosecution in Russia of an opposition activist is politically motivated the evidence cited in this case is as follows:

(1)   That the case against Navalny had been previously investigated but no charges were brought;

(2)   That the case against Navalny was only resurrected following the intervention of Bastrykhin the head of the Investigative Committee who at the time was engaged in a public war of words with Navalny;

(3)   Certain comments made shortly before the start of the trial by Vladimir Markin the spokesman of the Investigative Committee;

(4)   That the sentence handed down to Navalny and Ofitserov is much harsher than is normal in Russia for the sort of offence for which they were convicted;

(5)   The legal manoeuvres following Navalny’s conviction whereby he was first detained and then immediately released following the appeal of the prosecution.

As will become clear in my opinion none of this evidence such it is comes close to passing the very high threshold set by the European Court of Human Rights, which is required to prove that a prosecution is politically motivated.

(1)   Previous Failure to Prosecute Navalny

I do not know why the previous investigations into Navalny’s crime did not result in a decision to prosecute him.  An obvious reason is that the evidence in the case only emerged slowly.  Though the fact the local police were taping his telephone calls shows that someone in 2009 had already alerted them to Navalny’s activities I understand it was only in 2012 that Opalev finally admitted to his role in the conspiracy and agreed to testify against Ofitserov and Navalny.  I do not know when the police got hold of Navalny’s emails with Ofitserov and Belykh but the fact that some of them were leaked in 2012 by a Russian hacker who calls himself Hell suggests that it may not have been before then.  In addition those emails contain a message to Navalny from Belykh in which Belykh tells Navalny that Belykh is finding it increasingly difficult to shield Navalny from the police.  That might suggest that Belykh had been exerting himself on Navalny’s behalf and played a role in getting the earlier investigations stopped.  As Governor of the Kirov Region Belykh might have been in a position to do this.  Belykh would have compelling reasons to do this given the poor light the case casts on his administration of the Kirov Region.

Another possible explanation for the delay in bringing the case is that the case only really got off the ground following the formation of Russia’s new elite law enforcement agency, the Investigative Committee in 2011.  It is entirely understandable why overworked and under resourced provincial police agencies might be wary of starting a prosecution against a well known public figure such as Navalny.  Markin, the spokesman of the Investigative Committee, has again all but said as much, confirming that the Investigative Committee effectively kick started the case, which up to then had like many other similar cases been languishing at the back of the queue.

In the end though the question of why no prosecution was brought earlier simply does not matter.  The proper test for this case is not how it compares with earlier investigations that failed.  Many crimes are investigated more than once and over a protracted period before a successful prosecution is brought.  This is especially so in a case like this where the defendants engage in a conspiracy, which by definition means that many of their actions are carried out in secret.  The proper test for this case is how it was conducted.  This was a prosecution that ended in a successful conviction following a trial that has every appearance of being fair.  Given that this is so there are no grounds to suspect anything sinister simply because earlier investigations ended in failure.

(2)   Intervention by Bastrykhin

A film made in 2012 shows Bastrykhin the head of the Investigative Committee castigating his investigators for their repeated failure to pursue the investigation against Navalny.  The film was made for broadcast on national television and was broadcast on the same day or shortly after.  Bastrykhin’s intervention was public.  This shows he thought he was entitled to make it and did not think he was doing anything wrong.

Bastrykhin is right.  He did not do anything wrong by acting as he did.  Whilst it is true Bastrykhin has engaged in a public war of words with Navalny and that Navalny has floated allegations (denied by Bastrykhin) that Bastrykhin illegally owns property in the Czech Republic, Bastrykhin is at the end of the day the head of a law enforcement agency.  Investigating crime is his job.  Ordering his subordinates to investigate a crime Navalny committed was him simply doing his job.

The only point that can legitimately be made is that there is some question as to whether given the relatively small scale of the theft an agency like the Investigative Committee was the appropriate agency to investigate it.  Markin, the spokesman of the Investigative Committee, has said the reason the Investigative Committee became involved was because Navalny’s public prominence made the case in law enforcement terms something of a hot potato so that it needed an agency like the Investigative Committee to undertake it in order to ensure it was handled properly.  Behind this comment is surely awareness that because of Navalny’s involvement the case would eventually be referred to the European Court of Human Rights.  This is a statement of the obvious and I see no reason why the European Court of Human Rights should not accept it.

(3)   Markin’s Comments

Shortly before the start of the trial Vladimir Markin the spokesman of the Investigative Committee as well as explaining the reason for the Investigative Committee’s involvement in the case, made the following comments which have received extensive coverage and which have been reported as all but admitting a political motive to Navalny’s prosecution:

"If a person tries with all his strength to attract attention, or if I can put it, teases authorities – "look at me, I’m so good compared to everyone else” – well, then interest in his past grows and the process of exposing him naturally speeds up.”

This comment in no sense implies a political motive to Navalny’s prosecution.  All the comment says is that someone like Navalny who achieves fame by presenting himself as purer than everyone else (as Navalny does through his anti corruption activity) invites questions about his past.  If such a person has damaging secrets buried in his past such conduct will bring them to the surface.

This is a simple statement of the obvious familiar to anyone in the US or Britain who wishes to campaign for political office and who has something in their past they want to hide.  These words simply do not bear the sinister interpretation that has been placed on them.  Again I have no doubt the European Court of Human Rights will take the same view.

(4)   Harsher Sentence than usual for this Offence

It seems that fewer than 1% of cases brought under Article 160 in Russia end with a sentence of 5 years imprisonment such as the one that was handed down to Navalny.  It has been suggested that this shows that the heavy sentence imposed on Navalny in this case was intended to punish him and that this in turn shows that behind the case was a political motive.

This argument has to assume that the Judge in the case was not independent but was acting under instructions when he handed down his sentence.  As previously discussed there is nothing to suggest that.

Navalny’s 5 year sentence is within the range of sentences provided for by Article 160.  It is also fully in line with the sort of sentence that would be handed down to someone convicted for this sort of offence but who had pleaded not guilty in Britain.

There are simply no grounds to say this sentence is unduly harsh or that it is intended as some sort of punishment for Navalny’s political acts.  Nor is it appropriate to compare the sentence handed down to Navalny with the sentences handed down in the majority of cases where offenders are convicted under Article 160.  It is a mistake to minimise the crime committed in this case.  It is surely a much more serious crime than the great majority of crimes committed by offenders who are convicted for offences under Article 160.  It is also very unlikely that the great majority of offenders prosecuted under Article 160 defend the case in the same aggressive way Navalny has done.  That in itself explains why Navalny has received a longer sentence.  This is especially so if, as is surely the case, the great majority of offender prosecuted under Article 160 plead guilty.

Since the sentence handed down to Navalny is within the range provided by Article 160 and is in line with international practice there are no grounds to seeing it as evidence for a political motive to this prosecution.  I am sure this will be the view of the European Court of Human Rights.

(5)   Detention and Release following Verdict

Immediately following the pronouncement of the verdict Navalny was taken into custody as would certainly be the case in Britain.  Within hours he was released following a successful appeal against this decision brought by the prosecution.  The prosecution argued successfully in the appeal that there were no grounds to place Navalny in detention pending his appeal when he had previously abided by the terms of his bail.

The sudden release of Navalny at the instigation of the prosecution triggered a storm of speculation imputing various political motives to this act.  It was suggested that Navalny might have been released to pacify crowds that had gathered near the Kremlin and who were demanding his release.  The crowds however were relatively small (estimates vary between 2,500 to 10,000) making that explanation unlikely.  A popular alternative explanation was that Navalny was released on the insistence of Sobyanin, the acting Mayor of Moscow, who wants Navalny to stand in the forthcoming mayoral election in Moscow in which Navalny is a candidate.

The simple reality is that Navalny was released because that is what the law requires.  Russia’s Code of Criminal Procedure says a defendant should not be denied bail where there is no reason to do so.  This is the case even where the defendant has been convicted for the sort of offence for which Navalny has been convicted provided he is appealing the verdict.  Navalny is appealing the verdict and has abided by the terms of his bail so there were no legal grounds to detain him.  Placing Navalny in custody was a mistake (though one which apparently is often made) and his release therefore simply corrected a mistake.

In my opinion the European Court of Human Rights is involved in these events though not because there was a political role to Navalny’s prosecution or because his release is a sign of the involvement of the political leadership in his case.  Rather it is simply a reflection of the great care that is being taken over his case.  There is a long history of complainants bringing cases against Russia to the European Court of Human Rights, which they lose on the substantive issues but in which they score wins on lesser procedural points.  Defendants in such cases have been known to spin these wins on procedural points as victories in the case even though they have actually lost on the substance.

A media operation of precisely this sort is unfolding as I write.   In the latest in its long line of Judgments the European Court of Human Rights has again ruled that there was no political motive behind the prosecution of the imprisoned Russian oligarch Mikhail Khodorkovsky and that the Judge in his case was independent and impartial so that Khodorkovsky’s trial was basically fair.  The European Court of Human Rights did however find that there were some procedural violations in the way Khodorkovsky’s case and his trial was conducted for which however the Court’s criticisms were directed at the police and at the prosecution and not at the Judge.  That the European Court of Human Rights does not think these procedural violations ultimately affected the decision in the case is shown by the fact that it only awarded Khodorkovsky 10,000 euros for these violations and refused to award any compensation to Lebedev, Khodorkovsky’s co defendant, at all.  The fact that the European Court of Human Rights has however said that there were procedural violations by the prosecution in the trial has enabled Khodorkovsky and his lawyers and media advisers to claim quite wrongly that the European Court of Human Rights has found his trial unfair and to spin a defeat into a victory.

The Russian authorities have become very sensitive to this problem.  In a case like Navalny’s, which is almost certain to be referred to the European Court of Human Rights, they acted to prevent the same thing happening again.  This to my mind provides a complete explanation for what happened.

Regardless of whether this was the case or not, the European Court of Human Rights will obviously not treat action taken to correct a judicial error as evidence of a political motive behind Navalny’s prosecution.

In summary, none of the evidence that supposedly shows that there was a political motive behind Navalny’s prosecution is remotely convincing or comes close to passing the very high threshold required by the European Court of Human Rights.  For that reason I am sure any application to the European Court of Human Rights made on that basis will fail.

Before leaving the discussion of this question, there are two further points I want to make.

It has been said that imprisoning Navalny is a serious mistake that will transform a failed opposition leader into a political martyr.

It is undoubtedly the case that before this case was brought that Navalny’s star was fading.  He had proved a divisive and ineffectual leader of the opposition Coordinating Council.  He appears to be widely disliked by other leaders of the radical liberal opposition.  The veteran Russian liberal opposition leader Boris Nemtsov repeatedly damns him with faint praise and did so again following the verdict.  Prokhorov the Russian billionaire oligarch who ran Putin second in Moscow during the Presidential election of 2012 has conspicuously refused to support him in the Moscow mayoral election.  The protest movement that began in Moscow following the parliamentary elections in December 2011 of which Navalny has effectively made himself leader is on the wane.  Opinion polls show that the more Russians come to know Navalny the greater the percentage of Russians who mistrust and dislike him.  Given his arrogance and his unpopular views on many issues that is unsurprising.  Navalny’s opinion poll rating before the verdict in the Moscow mayoral election was just 4%.  He was only able to register as a candidate for the election because Sobyanin, the acting Mayor, ordered councillors from United Russia, the government party, which Navalny had previously called "the party of crooks and scoundrels”, to support his registration.

All of this to my mind provides compelling grounds to doubt a political motive to this case.  Navalny was no conceivable threat to Putin or the government before the case was brought.  Jailing him deprives the opposition of an unpopular and incompetent leader whilst giving Navalny an opportunity to pose as a martyr.  Jailing Navalny simply because he is an outspoken opponent of the government makes no political sense and is simply stupid.  Given the international ramifications of this case if Russia really is a country were prosecutions are decided by the country’s political leadership then it is inconceivable that Putin himself would not be involved.  The suggestion I sometimes come across that Bastrykhin and the Investigative Committee have become a law unto themselves and have slipped beyond Putin’s control is completely absurd.  In his time Putin has been called many things but there are very few people indeed who call him stupid.  The fact that Putin has no conceivable interest in having Navalny jailed and derives no benefit from doing it is an overwhelmingly strong reason to doubt that he or the government or the country’s political leadership have anything to do with the case.

Lastly, though it is a subject that is outside the scope of this essay, I would simply offer my opinion that the political impact of this case has been overstated.  Opinion polls show that there has indeed been a small surge of support for Navalny in Moscow (from 4% to 9%).  I expect this to fade as even those Muscovites sympathetic to him consider the implications of voting for someone as Mayor who they know is going to prison.  Campaigns against miscarriages of justice only gain traction where there actually is a miscarriage of justice.  Since there has been no miscarriage of justice in this case public interest in this case (never strong) over time will fade away.  The latest opinion poll already appears to show this happening with growing readiness amongst Russians to accept the verdict in the case

http://en.rian.ru/russia/20130726/182437185/More-Russians-See-Navalny-Trial-as-Apolitical–Poll.html

Farther afield, interest in the case in the west has been limited with far less interest in the case than that accorded to the cases of Khodorkovsky, Magnitsky or Pussy Riot.  Quite simply Navalny has been too obviously a failure politically to attract much interest or sympathy.  Doubtless his imprisonment will be added to the long list of "crimes” of which the Russian authorities routinely stand accused but merely to say that is to show how little genuine interest in his case there really is.

As for the radical liberal opposition to Putin, they now have another martyr to add to their list, which however is already full to the brim with various equally dubious and unlikely individuals who like Navalny are deeply unattractive to the great majority of Russians if only because of their criminal records.  A radical change in political strategy is urgently needed as the complete failure of the radical opposition’s project shows.  Dropping their blind support for characters like Khodorkovsky, Navalny, Pussy Riot and (when he comes up for trial) Udaltsov is an imperative political necessity.  Getting a proper leader is now the priority and would be a good start.

Conclusion

The purpose of this essay was to examine Navalny’s case to see whether the many criticisms made of it are right.  Having examined both the law and the evidence in detail and having also looked at the conduct of the trial it is impossible for me to see that they are.  Navalny was properly convicted following a fair trial for a recognised criminal offence.  I am sure the outcome would have been the same if this case had been prosecuted in Britain.  Had it been prosecuted in Britain I am also sure it would have attracted none of the interest this case has attracted because it was brought in Russia.

There is no reason to suspect a political motive behind this case.  It is in almost every respect a commonplace case of white collar theft.  Vladimir Markin, the spokesman of the Investigative Committee, has again basically said as much.  It is the sort of case that happens in all countries at most times.  The case’s only unusual feature is that Aleksei Navalny is involved in it as one of the defendants.

There will now be an appeal.   It may be that over the course of that appeal more or different facts will come to light or more errors by the Judge will be discovered, which might cause the appeal court to set the verdict aside.  I have to say I think that very unlikely.  Beyond that there will no doubt be a complaint to the European Court of Human Rights.  Given the backlog of cases in that Court unless steps are taken to give Navalny’s case priority (for which I can see no reason) the likelihood is the European Court of Human Rights will not rule on the complaint before Navalny is released even if he serves his full sentence.  When that does happen for the reasons I have said I expect his complaint to fail.

As for Navalny himself, unless he manages to pull off a totally unexpected upset in the Moscow mayoral election that forces the authorities to take the extraordinary step of overturning the verdict in his case, which I have to say I also think extremely unlikely, he must now prepare himself for a long spell in prison.  He has the option of changing his plea and of seeking early release or of applying to Putin for a pardon but I suspect that his vanity and his need to avoid disappointing his supporters will prevent him taking it.  He can always in the meantime hope that something unexpected like a successful appeal, an upset victory in the European Court of Human Rights or a political revolution in Russia will set him free.  Until one of these unlikely events happens he remains guilty as charged.

Acknowledgements:

Navalny’s trial has gone almost entirely unreported in the west or in the Russian English language media.  Even RAPSI, Russia’s legal news agency, stopped reporting it in English.  This reflects the incredibly tedious nature of the case and the slight interest in it.  That has however made life hard for an analyst who does not speak Russian.  I therefore have to thank the person I know as Yalensis who has provided regular updates and commentaries on the case which I have followed and myself commented on.  Without those updates and commentaries this essay could not have been written.  These updates and commentaries can all be found on the blogsite Kremlin Stooge.  I want to thank Mark Chapman, the host of Kremlin Stooge, for making that all possible.

I also wish to thank Jon Hellevig, Dmitri Babich, Yalensis (again) and the person I know as Peter for providing translations of the various Articles in the Russian Criminal Code I have discussed and for providing clarification of the legal manoeuvres that caused Navalny’s unexpected release following the verdict.  I should say that I have nonetheless continued to use translations of the relevant sections of Articles 158, 160 and 165 of the Russian Criminal Code drawn from the following website http://www.russian-criminal-code.com/

Though the translations provided by this website of the Articles of the Russian Criminal Code date from 2000 the definitions of the offences set out in these Articles are unchanged.  I have preferred to use these translations of the definitions of the offences set out in these Articles since the website was made for use by lawyers and therefore translates Russian legal terms by their English equivalents.

Lastly, I would like to thank Anatoly Karlin.  His view of the case is very different from mine but his interpretation of it has offered insights that have caused me to make some of the points I have made.  Indeed at times this essay is practically a debate with him.

It goes without saying that all the opinions in this essay and any errors in it are my own.

 

http://mercouris.wordpress.com

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