Information Note on the Court’s case-law 193

February 2016

Navalnyy and Ofitserov v. Russia - 46632/13 and 28671/14

Judgment 23.2.2016 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Manifestly unreasonable conviction of political activist and his alleged accomplice: violation

Article 18

Restrictions for unauthorised purposes

Allegedly improper restriction of rights under Articles 6 and 7 o f the Convention: inadmissible

Facts – The first applicant was a lawyer, political activist, opposition leader, anti-corruption campaigner and popular blogger and the second applicant a company director. In 2012 the applicants and a third party, X, were fo rmally charged with fraud related offences. X entered into a plea bargain and was tried and convicted in separate, accelerated proceedings. He subsequently appeared as a witness in the applicants’ trial, which ended in their conviction.

In the Convention proceedings the applicants complained in particular under Article 6 of the Convention that the criminal proceedings against them had been arbitrary and unfair, notably on account of prejudicial comments that were made in the proceedings a gainst X and of their own trial court’s failure to examine their allegations of political persecution.

Law

Article 6 § 1: It was undeniable that any facts and legal findings established in the proceedings against X were directly relevant to the applicants’ case. In such circumstances, safeguards should have been in place to ensure that the procedural steps and decisions taken in the proceedings against X would not undermine the fairness of the hearing in the subsequent proceedings against the applicants, es pecially as the applicants were legally precluded from any form of participation in X’s trial.

Neither of the two guarantees that had to be secured when co-accused were tried in separate sets of proceedings – namely that courts refrain from statements that may have a prejudicial effect on pending proceedings and that res judicata should not attach to facts admitted in a case to which the individuals were not party – were complied with by the domestic courts.

As to the first guarantee, the court that tried X worded its judgment in a way that left no doubt about the applicants’ identities or their involvement in the offence and expressed its findings of fact and opinion in terms which could not be defined as anything but prejudicial. As to the second requireme nt, at the material time the Code of Criminal Procedure afforded the force of res judicata to judgments even if issued in accelerated proceedings and laid down that circumstances established in a judgment must be accepted without additional verification. A lthough the trial court in the applicants’ case had been obliged to base its assessment exclusively on the material and testimony presented at the hearing before it, the Court considered that the risk of issuing contradictory judgments was a factor that di scouraged the judges from finding out the truth and diminished their capacity to administer justice, thus causing irreparable damage to their independence, impartiality and ability to ensure a fair hearing.

In addition, the separation of the cases and X’s conviction through the use of plea-bargaining and accelerated proceedings compromised his competence as a witness in the applicants’ case as he was compelled to repeat the statements he had made as an accuse d as otherwise he ran the risk that the judgment issued on the basis of his plea-bargaining agreement would be reversed.

The Court further observed that the questions of interpretation and application of national law by the domestic courts in the applicant s’ case had gone beyond a regular assessment of the applicants’ individual criminal responsibility or the establishment of corpus delicti . In fact, the acts described as criminal fell entirely outside the scope of the provision under which the applicants w ere convicted and were not concordant with its intended aim. The criminal law had thus been arbitrarily and unforeseeably construed to the applicants’ detriment, leading to a manifestly unreasonable outcome of the trial.

In addition, the domestic courts ha d failed, by a long margin, to ensure a fair hearing in the applicants’ criminal case, and the suggestion was they did not even care about appearances. It was noteworthy too that they dismissed without examination the applicants’ allegations of political p ersecution, which were at least arguable. As to the first applicant, his anti-corruption campaign had gained momentum in 2010 and it was becoming evident that he was aiming to reach out to a wider public as a politician at the national level. Since his con viction he had been ineligible to stand for election, his freedom of movement had been restricted, and he had been banned from making public statements. It was noticeable too that the dates on which his prosecution began coincided with the publication of s ome of his articles in the media. There had therefore been an obvious link between the first applicant’s public activities and the domestic authorities’ decision to press charges, a link the domestic courts had failed to consider. The same applied to the s econd applicant, who had an arguable claim that he was targeted only in order to bring the first applicant into the orbit of the criminal case, a reason equally unrelated to the true purposes of a criminal prosecution. By their failure to address these all egations the domestic courts had heightened the concerns that the real reason for the applicants’ prosecution and conviction was political.

The criminal proceedings against the applicants, taken as a whole, thus constituted a violation of their right to a fair hearing under Article 6 § 1 of the Convention.

Conclusion : violation (unanimously).

Article 18 in conjunction with Articles 6 and 7: The applicants had alleged that their prosecution and criminal conviction had been for reasons other than bringing the m to justice, in particular in order to prevent the first applicant from pursuing his public and political activities. The Court noted, however, that the provisions of Articles 6 and 7 of the Convention, in so far as relevant to the present case, did not c ontain any express or implied restrictions that could form the subject of the Court’s examination under Article 18 of the Convention.

Conclusion : inadmissible (incompatible ratione materiae ).

Article 41: EUR 8,000 each in respect of non-pecuniary damage; c laims in respect of pecuniary damage dismissed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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