Karinna Moskalenko: The Yves Rocher case was significant in that Navalny was recognised as having been victim of the violation both of Article 6 and Article 7 of the European Convention

13 February 2021

The lawyer Karinna Moskalenko is a member of the Moscow Helsinki Group and founder of the Centre for the Promotion of International Defence

Source: Moscow Helsinki Group [original source: Дождь]

Aleksei Navalny’s defence lawyers have appealed to the Committee of Ministers of the Council of Europe (CoE) [1] over the failure of the Russian authorities to comply with the decision of the European Court of Human Rights (ECtHR) regarding the Yves Rocher case.[2] This was announced by the opposition politician’s lawyers.  Navalny himself has stated that his “unlawful” conviction in the Yves Rocher case had become “an instrument enabling the authorities to continue to persecute him.”  It was in connection with the Yves Rocher case that Navalny’s suspended sentence was replaced with imprisonment on 2 February, regardless of the fact that in 2017 the ECtHR ruled that the fraud case brought against Aleksei and his brother Oleg Navalny, which was based on a complaint by the Yves Rocher company but which was heard in Russia, had violated the right  of the accused to a fair trial.  The ECtHR concluded in 2017 that the sentences handed down [in 2014] were arbitrary and unfounded.  The decisions of the ECtHR are binding on all member-states of the CoE, Russia included.

Moreover, Navalny’s lawyers stated that the Russian authorities had shown “complete disrespect” for their obligation to comply with the decisions of the ECtHR in another case regarding Navalny’s detention at rallies, which the ECtHR had in 2018 found to be politically motivated.  In this connexion, Navalny appealed to the Committee of Ministers of the CoE to adopt an interim order against the Russian authorities for “their persistent refusal to comply with decisions” in cases relating to the politician, and to initiate proceedings under Article 46 [Binding force and execution of judgments] of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

On 13 February, the lawyer Karinna Moskalenko (member of the Moscow Helsinki Group and founder of the Centre for the Promotion of International Defence) discussed with journalists of the Russian television channel Dozhd’ (also known as TV Rain) how Navalny’s appeal might play out.

Moskalenko told Dozhd’ that “The Yves Rocher case was significant in that Navalny was recognised as having been victim of the violation both of Article 6 of the European Convention [right to fair trial], which means that his verdict should have been cancelled, and Article 7 [no punishment without law] which is a very special norm.  For Russia, such a decision is virtually unthinkable, since the Russian authorities often refer to the unacceptability of interfering in the internal affairs of a state.  The European Court meticulously respects the unacceptability of interfering in the jurisdiction of national judicial bodies, but occasionallyalbeit very rarelyrules that Article 7 has been violated by a member-state of the Council of Europe, meaning that no-one should be punished for actions that are not considered criminal according to the laws of that country.  This may be described as the criminalisation of non-criminal actions, or the unjustified criminalisation of actions,” Moskalenko explained.  In her opinion, the state should in such circumstances terminate the legal proceedings, because Article 7 states that the case should not even be considered, and that it is illegitimate.

Moskalenko also said that the memorandum which Navalny’s lawyers had addressed to the Committee of Ministers of the CoE testifies to the fact that, in some cases, the Russian authorities knowingly ignore the rulings of the ECtHR.  “The European Convention states that, if a government fails to comply with a ruling of the European Court, then, in case there are problems with the interpretation of the decision in question, the European Court should spell out the essence of its decision and its correct implementation.  If there are no such problems, then the European Court should consider the possibility that what has occurred is a direct and open rejection of one of its decisions.  In that case, the European Court should assess the action of the state…. Your next question will be, what will happen next?  But all I can say is that so far there have been no such cases,” Moskalenko said.  She confirmed that Russia’s membership of the CoE, and the possibility of its complete isolation, are under question.

Translated by Elizabeth Teague

Translator’s notes:

[1]  The Committee of Ministers is the Council of Europe’s decision-making body. It consists of the Foreign Ministers of all the member states, or their permanent diplomatic representatives in Strasbourg.

[2] In the Yves Rocher case of 2012-2014, Aleksei Navalny and his brother Oleg were accused and found guilty of embezzling the French cosmetics firm. They pleaded not guilty, calling the case politically motivated. Oleg Navalny was sentenced to 3.5 years in prison while Aleksei was given a 3.5-year probation sentence.  In 2017, the ECtHR declared the verdicts unjust and ordered the Russian authorities to pay the Navalny brothers compensation.  Their sentences were not however dismissed.

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