MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-34

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-34 Navalnyy and Ofitserov (Application No. 46632/13) and Navalnyye (Application No. 101/15) v. Russian Federation Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1076, CM/ResDH(2021)107, CM/Del/Dec(2021)1411/H46-32

 

Application	Case	Judgment of	Final on	Indicator for the classification
46632/13	NAVALNYY AND OFITSEROV	23/02/2016	04/07/2016	Urgent individual measures
101/15	NAVALNYYE	17/10/2017	05/03/2018	Complex problem

Case description

The Navalnyy and Ofitserov case concerns the criminal conviction in 2013 of Mr Aleksey Navalnyy and Mr Petr Ofitserov of organising and facilitating large-scale embezzlement of assets of the Kirovles timber processing company. At the first applicant’s suggestion, the second applicant set up a timber trading company, VLK, which signed a contract with Kirovles to sell the latter’s goods at 7% commission. The trial court held that the applicants knew that VLK would pay for the goods at a price lower than Kirovles could have received without an intermediary, thus depriving the company of profits which it could legitimately expect. The applicants were sentenced to suspended prison terms and fines.

The Court found that the conviction of the applicants’ co-accused, the director of the Kirovles company, in separate accelerated proceedings had prejudiced the outcome of their trial and deprived them of basic guarantees of a fair trial. It also held that the applicants had been found guilty of acts indistinguishable from regular commercial activities, which fell entirely outside the scope of the offence of embezzlement. It concluded that the criminal law was thus arbitrarily and unforeseeably construed to the applicants’ detriment, leading to a manifestly unreasonable outcome of the trial. Finally, the Court found it obvious that there had been a link between the first applicant’s public activities and the decision to press charges against him, but that the domestic courts had failed to address Mr Navalnyy’s arguable allegation to this effect. It concluded that the criminal proceedings against the applicants, taken as a whole, constituted a violation of their right to a fair hearing (violation of Article 6). In the light of this finding, it did not consider it necessary to examine whether this fact also constituted a violation of Article 7 of the Convention.

The Navalnyye case concerns the criminal conviction in 2014 of Mr Aleksey Navalnyy and his brother, Mr Oleg Navalnyy, of commercial fraud and money laundering. The applicants’ company, GPA, had concluded contracts with two companies, Yves Rocher Vostok and MPK, for freight forwarding and logistical services.

GPA subcontracted the delivery of the services to other companies at a lower price. The applicants were sentenced to three and a half years’ imprisonment, suspended for Aleksey Navalnyy, and five years’ probation. Oleg Navalnyy was also fined and both applicants were ordered to pay civil damages.

The Court held that the Russian courts had extensively and unforeseeably construed the Criminal Code to the applicants’ detriment, so that the boundaries of the offences imputed to them and regular commercial activity were indiscernible (violation of Article 7). Having found under Article 7 that the courts had failed to rule on substantive elements of the offences and had not made a proper assessment of the defence’s arguments, the Court further considered that the decisions reached were arbitrary and manifestly unreasonable, undermining the fairness of the criminal proceedings in such a fundamental way that it had rendered other procedural guarantees irrelevant (violation of Article 6).^[1]

In both cases, the Court considered that the reopening of the criminal proceedings, if requested, would be the most appropriate form of redress, and therefore declined to award the applicants just satisfaction in respect of pecuniary claims to cover their fines. In both cases, the European Court awarded just satisfaction in respect of non-pecuniary damages and costs and expenses.

Status of execution

Individual measures

For full details of the information available in respect of individual measures, see the Notes prepared for the examination of these cases at the Committee’s 1411^th meeting (September 2021) (DH).[2] This information can be summarised as follows.

Navalnyy and Ofitserov

The just satisfaction has been paid in full to both applicants. Moreover, following the remittal of the applicants’ case for a fresh examination, the convictions were confirmed by the domestic courts in a final decision delivered on 20 March 2018. In 2017, civil damages for the Kirovles company were awarded against the applicants and paid by the first applicant. Due to his conviction, the first applicant was barred from participating in the 2018 election and his conviction also bans him from participating in future elections until the end of 2028. Mr Ofitserov died on 13 July 2018.

In their action reports submitted in this case, the authorities have argued that the violations identified by the European Court have been eliminated, to the extent possible, by the payment of the just satisfaction and the new trial. They have also objected to the Committee’s competence to examine the new trial as it had not been reviewed by the European Court.

Navalnyye

The just satisfaction has been paid, and the criminal proceedings were reopened, with the court concluding that the original trial had been conducted in full compliance with domestic law. On 29 June 2018, Oleg Navalnyy was released, having served his sentence in full.^[3] On 17 January 2021, upon his return to the Russian Federation, Aleksey Navalnyy was taken into custody. On 2 February 2021, the Simonovskiy District Court of Moscow converted Aleksey Navalnyy’s suspended sentence into three-and-a-half-years’ imprisonment in a correctional colony. The final term, amounting to two years and eight months after taking into account the ten months spent by the applicant under house arrest during the original trial, is set to expire in September 2023.

In their action reports submitted in this case, the authorities argued that the Convention did not contain a requirement of automatic quashing of national judicial decisions in connection with Court’s judgments, and the fact that the Supreme Court had reopened the proceedings in this case and carried out an additional examination of all the circumstances of the case and its compliance with the procedural requirements was proof that the judgment had been executed. According to the subsidiarity principle, interpretation and application of domestic law lies within the exclusive competence of national courts.

In accordance with the Russian Constitution, courts are independent; the executive bodies have no right to interfere in judicial activities or to cancel judicial decisions.

Committee’s last decision

At its last examination of these cases in September 2021 focused on the individual measures required, the Committee again strongly urged the authorities to release immediately Mr Aleksey Navalnyy, to quash the convictions impugned in both cases, and to reimburse the applicants in the amount of the fine and the civil damages they have paid.

As regards the Navalnyy and Ofitserov case, the Committee reiterated its invitation to the authorities to provide their comments concerning the measures of redress still available to them in the case of late
Mr Ofitserov.

As regards the Navalnyye case, it stressed the importance of maintaining dialogue and affirmed its readiness to ensure the implementation of the judgment. In that light, it invited the Secretary General to write a letter to the Minister of Foreign Affairs of the Russian Federation conveying deep concern about Mr Aleksey Navalnyy’s continuing detention. It further invited the Russian authorities to engage without further delay in consultations with the Secretariat and to provide by 18 October 2021 a detailed analysis of the avenues available under the Russian legislation to implement fully the judgment of the European Court.

Lastly, the Committee decided to resume the consideration of individual and general measures in both cases at their 1419th meeting in December 2021 (DH) at the latest.

Most recent submission from the authorities

On 19 October 2021, the authorities submitted another action report (see DH-DD(2021)1076).

As regards Navalnyy and Ofitserov, the authorities referred once again to the applicants’ complaint[4] that is currently pending before the European Court which concerns the criminal proceedings that took place following the reopening of the case by the Presidium of the Supreme Court. They reiterated their argument that the Committee is not competent to examine final domestic judicial decisions which are the subject of an application pending before the Court.

As regards Navalnyye, the authorities reiterated their previous arguments, mainly referring to  the lack of an obligation to reverse final decisions of national courts in connection with Court’s judgments, and pointing out the Committee’s decision to close its supervision of the execution of the case Öcalan v. Turkey (no. 46221/99) following the national court’s conclusion that there was no need to conduct further investigations or hearings, as the violation established by the European Court did not require a change of the initial ruling.

In response to the Committee’s invitation to provide a detailed analysis of the avenues available under the Russian legislation to implement fully the judgment, they submitted that Russian law does not provide for a review of decisions taken by the Presidium of the Supreme Court.

Most recent communication under Rule 9

On 15 November 2021, Mr Aleksey Navalnyy’s representatives submitted a new communication (see
DH-DD(2021)1190[5]), requesting that its content not be made public.

General measures

Information on general measures was submitted by the authorities in the Navalnyy and Ofitserov case on 23 November 2017 (see DH-DD(2017)1326).

The judgment has been translated, published and disseminated to the competent State authorities.

As regards the right to challenge in court the initiation of a criminal investigation, this is guaranteed by Article 125 of the Code of Criminal Procedure and has been confirmed by the rulings of the Constitutional Court and the Supreme Court’s Plenary.

As regards the safeguards applied to separate and accelerated criminal proceedings, the authorities pointed out that the possibility to disjoin a criminal case was put in place to allow for an effective conduct of criminal proceedings without unjustified delays. A decision by an investigator or a prosecutor to disjoin a criminal case has to be based on factual and legal grounds. A court may decide to return a case to the prosecution to be joined again to the main case, if it finds it impossible to study fully and comprehensively the circumstances of the alleged crime committed in complicity.

Article 90 of the Code of Criminal Procedure was amended in June 2015 to exclude circumstances established in a final judicial decision given in accelerated proceedings or those involving a plea bargain from the general rule that such circumstances shall be accepted without additional verification.

As regards ensuring that courts refrain from statements that may be prejudicial to criminal proceedings initiated against third parties, in 2016 both the Constitutional Court and the Plenary of the Supreme Court adopted rulings drawing the domestic courts’ attention to the need to avoid any wording that could be seen as establishing the guilt of third parties.

Similar rulings were adopted by these courts in 2016 and 2017 as regards arbitrary and unforeseeable interpretation of criminal law: the courts were reminded that a judgment can only be considered lawful, reasoned and fair when it complies with the requirements of criminal procedure and is based on correct application of criminal law.

As regards the examination of claims of politically motivated persecution, according to Russian law and the clarifications provided by the higher courts in 2015 and 2016, a defendant’s arguments are subject to careful examination by the trial courts, and the burden of their refutation lies with the prosecution.

Lastly, the authorities indicated that the courts’ impartiality is ensured, inter alia, by the legislation providing for the removal of judges from the participation in proceedings if their impartiality can be doubted. Examples were provided demonstrating assignment of criminal cases to courts of different territorial jurisdiction to ensure the impartiality of judges.

Analysis by the Secretariat

Individual measures

In response to the Committee’s invitation set out in the previous decision in respect of the Navalnyye case, on 28 September 2021 the Secretary General sent a letter to the Minister of Foreign Affairs of the Russian Federation, outlining the Committee’s examination of the case and most recent decision, in particular the invitation to the Russian authorities to engage in consultations with the Secretariat and to provide by 18 October 2021 a detailed analysis of the avenues available under the Russian legislation to implement fully the judgment of the European Court, and assuring that the Secretariat stands ready to explore, as soon as possible and in close co-operation with the Russian authorities, all avenues for the speedy and full execution of this judgment. By letter dated 12 October 2021, the Ambassador of the Russian Federation replied to that letter, without entering into the substance of the points raised by the Secretary General.

In response to the Committee’s invitation in this case to provide a detailed analysis of the avenues available under the Russian legislation to implement fully the judgment, the authorities submitted only that the domestic law did not contain provisions for a review of the decisions taken by the Presidium of the Supreme Court. Nonetheless, in 2011 the Presidium of the Supreme Court quashed its own earlier decision adopted in response to the finding of a violation by the European Court to leave standing, with only slight modifications, the criminal conviction against the applicants in the Laryagin and Aristov case (no. 38697/02, final judgment of 8 April 2009): while it decided first that the finding of the violation did not require a new trial, it came to the opposite conclusion in its second decision.[6] This demonstrates that a second review by the Presidium of the Supreme Court is at least not excluded.

It is recalled in response to the authorities’ arguments that while, indeed, there is no requirement of automatic quashing of national judicial decisions in connection with Court’s judgments, it is the Court’s settled case-law and the Committee’s well-established practice that an applicant should, as far as possible, be put in the position in which he would have been had the requirements of the Convention not been disregarded. The nature of the violations of Articles 6 and 7 found in this case is such that this position can only be achieved by eliminating the conviction and its legal consequences. The Committee’s decision[7] to close its supervision of the execution of Öcalan v Turkey referred to by the authorities is not comparable as the applicant in that case had admitted the crimes imputable to him, and the findings of the Court were largely procedural and thus unable to cast doubt on the safety of his conviction. This is in contrast to the present case where the nature of the violations established challenged the very basis of the applicant’s conviction and indeed, the prosecution itself.

Against this background, the Committee may wish to renew its call for the authorities to enter into consultations with the Secretariat to achieve a full execution of the judgment in this case.

In the Navalnyy and Ofitserov case, the authorities’ objection regarding the competence of the Committee has been addressed in the notes prepared for the examination at the Committee’s 1294^th meeting (September 2017) (DH). It is recalled in this respect that the Committee’s task is to ascertain whether a judgment by the European Court has been duly executed by the authorities. In this case, the new proceedings took place as a direct response to the European Court’s findings, and the authorities themselves referred to them in their earlier action reports as a measure taken to eliminate the violations established. The question of compliance by the Contracting States with the Court’s judgments falls outside the Court’s jurisdiction. Under the second paragraph of Article 46, the function of supervising the execution of judgments is entrusted to the Committee of Ministers.[8] It is therefore within the Committee’s competence to assess whether the new proceedings remedied the violations in an adequate manner. It can be added that examination of any new subsequent developments by the Court in order to determine whether they reveal breaches of the Convention does not automatically bar the Committee from evaluating whether these developments constitute adequate redress for the violations already established. Due to the differences in the Court’s and Committee’s mandates and the scope of their consideration, such evaluation in no way prejudges the Court’s review.

The authorities should be exhorted to comply with the judgment in this case.

General measures

It is recalled that the finding of the violation of Article 6 by the Court in Navalnyy and Ofitserov was based on three elements: (1) the prejudicial effect of the conviction of their co-accused in separate accelerated proceedings with the use of plea bargaining on the outcome of their own trial; (2) arbitrary and unforeseeable construction of criminal law to the applicants’ detriment; and (3) failure by the courts to address the allegations of politically motivated criminal prosecution.

As regards the first element, the Court indicated that in the circumstances where a decision is made to sever a criminal case against one co-accused facing the same criminal charges as his co-defendants into separate criminal proceedings, certain safeguards have to be in place to guarantee a fair trial (§§ 103-105 of the judgment). Firstly, the courts are obliged to refrain from statements which may have a prejudicial effect on the pending proceedings, even if they are not binding: if the nature of the charges makes it unavoidable for the involvement of third parties to be established in one set of proceedings and those findings would be consequential on the assessment of the legal responsibility of the third parties tried separately, this should be considered as a serious obstacle for disjoining the cases. Secondly, the courts are obliged not to treat as res judicata any facts admitted in a case to which defendants were not a party.

It appears from the action report submitted in November 2017 (see above) that since the fact of the case, at least partial measures have been taken to put in place the above safeguards or to enhance compliance with them. It is noted that higher courts have issued directives instructing the courts to refrain from establishing the guilt of third parties in conviction judgments. It remains to be clarified whether cases can still be disjoined if the nature of the charges makes unavoidable for the involvement of third parties to be established, as in the case at issue. As to the obligation not to treat as res judicata facts admitted in a case against a third party, the amended Article 90 of the Code of Criminal Procedure excludes from this treatment facts established in accelerated proceedings and proceedings involving plea-bargaining. Since the scope of this case is limited to the impact of accelerated proceedings and proceedings involving
plea-bargaining on the fairness of regular criminal trials, this appears to be sufficient.

At the same time, questions remain as to the use as evidence of statements obtained from a former co-defendant convicted in separate proceedings and as to the incentive to remain concordant for the courts acting in concurrent proceedings. As stated in the judgment, the quality of a witness convicted in accelerated proceedings and wishing to maintain his conviction because of the reduced sentence, can be compromised (§ 109). A legislative ban on disjoining cases where co-defendants are alleged to have acted in complicity or are otherwise closely linked should be considered.

As regards the arbitrary and unforeseeable construction of criminal law, the information about the subsequent directive rulings of the higher courts reminding the lower courts to act in accordance with the criminal procedure and to apply criminal law correctly is noted. However, this finding, repeated in the Navalnyye case, points to more than a simple error in the application of the national criminal law or some procedural irregularities.

According to the Court, in this case it was “confronted with a situation where the acts described as criminal fell entirely outside the scope of the provision under which the applicants were convicted and were not concordant with its intended aim” (§ 115). The Court also stated that its findings in this case may be taken to suggest that the domestic courts “did not even care about appearances” (§ 116). Information is awaited as to whether these findings require measures to avoid such situations in the future and whether such measures have been taken or planned.

As regards the failure by the courts to address the prima facie arguable allegations of politically motivated criminal prosecution, the information about the higher courts’ reminders that all of the arguments of the defence should be addressed is noted. Information is awaited as to whether these findings require additional measures.

Information in respect of all the outstanding issues as indicated above in the Navalnyy and Ofitserov case, as well as on the general measures taken or planned to address the violations established in Navalnyye case, is awaited.

Financing assured: YES