Communicated on 21 December 2017
THIRD SECTION
Application no. 78193/17
Aleksey Anatolyevich NAVALNYY and Petr Yuryevich OFITSEROV
against Russia
lodged on 27 October 2017
STATEMENT OF FACTS
The applicants, Mr Aleksey Anatolyevich Navalnyy and Mr Petr Yuryevich Ofitserov, are Russian nationals, who were born in 1976 and 1975 respectively and live in Moscow. They are represented before the Court by Ms O. Mikhaylova, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant, Mr Navalnyy, formerly an advocate, is an opposition politician and anti-corruption campaigner. He has announced his intention to stand in the 2018 presidential elections. The second applicant, Mr Ofitserov, is a businessman.
1. The Court’s judgment in the case Navalnyy and Ofitserov v. Russia, (nos. 46632/13 and 28671/14, 23 February 2016)
On 18 July 2013, the Leninskiy District Court of Kirov convicted the first applicant of organising, and the second applicant of facilitating, large-scale embezzlement. They were sentenced to five and four years’ imprisonment respectively, to be served in a correctional colony. Among other evidence, the court relied on the testimony of the applicants’ co-accused Mr X and his statements made during the plea-bargaining in a separate case, also examined by the same District Court. The court dismissed the first applicant’s allegations of political persecution and his objection to admitting X’s testimony. On 16 October 2013 the Kirov Regional Court dismissed the applicants’ appeal and upheld the first-instance judgment in substance. It amended their sentence and gave them both suspended prison terms on an undertaking not to change their place of residence.
On 23 February 2016 the Court delivered its judgment in relation to the above criminal proceedings. It found that there had been a violation of Article 6 of the Convention on the following grounds.
First, it found that the basic requirements for guaranteeing the fairness of proceedings, when co-accused were being tried in separate sets of proceedings, had not been fulfilled in that the trial court convicting X in earlier proceedings had expressed its findings in terms prejudicial to the applicants who were defendants in a separate case. Also, the circumstances established in the judgment against X were, in law and in fact, binding on the court in the applicants’ case although they had not been party to the proceedings against X. Moreover, in those circumstances the trial court had had an obvious interest in remaining concordant with the first judgment, because any conflicting findings made in related cases could have undermined the validity of both judgments issued by the same court. The risk of issuing contradictory judgments was a factor that had discouraged the judges from finding out the truth and had diminished their capacity to administer justice.
The Court also found that X, a witness in the applicants’ case, had been compelled to repeat his statements made as an accused during plea-bargaining. Moreover, by allowing X’s earlier statements to be read out at the trial before the defence could cross-examine him as a witness, the court could give an independent observer the impression that it had encouraged the witness to maintain a particular version of the events.
In finding a violation of Article 6 § 1, the Court expressly accepted the applicants’ allegations of arbitrary and unforeseeable application of the criminal law, since the acts described as criminal fell entirely outside the scope of the provision under which the applicants had been convicted.
Finally, the Court found that the domestic courts had dismissed without examination the first applicant’s allegation of political persecution, which the Court considered at least arguable.
As regards the complaint under Article 7, the Court declared it admissible. However, in view of its finding that that the domestic courts had applied the criminal law arbitrarily and had found the applicants guilty of acts indistinguishable from regular commercial activities, it considered that it was not necessary to examine whether this also constituted a violation of Article 7.
As regards the complaint under Article 18 in conjunction with Articles 6 and 7, the Court found that it was inadmissible ratione materiae.
Finally, the Court referred to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded. It found that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested by the applicants.
2. Subsequent developments
On 16 November 2016, following the applicants’ request to reopen and to terminate the criminal proceedings, referring to the Court’s judgment of 23 February 2016, the Presidium of the Supreme Court of the Russian Federation quashed the earlier judicial decisions in the applicants’ criminal case and remitted it to the Leninskiy District Court of Kirov for a fresh examination.
On 5 December 2016 the District Court began the hearing of the criminal case at first instance. The applicants requested the court to terminate the criminal proceedings on the basis of the substantive findings contained in the Court’s judgment of 23 February 2016, or to remit it to the prosecutor’s office. They also challenged the trial judge, inter alia on the basis of his hierarchical subordination to the judged who had examined the case before.
On 24 and 25 January 2017 the court examined Mr X, the applicants’ co‑accused who had been tried in separate abridged proceedings and who had been previously examined as a witness in the proceedings against the applicants.
On 8 February 2017 the District Court found the first applicant guilty of organising, and the second applicant of facilitating, large-scale embezzlement and sentenced them to five and four years’ of suspended prison terms respectively and to a fine of 500,000 roubles each.
On 3 May 2017 the Kirov Regional Court examined and dismissed the applicants’ appeal and upheld the first-instance judgment.
COMPLAINTS
The applicants complain under Article 6 of the Convention that the fresh examination of their criminal case violated their right to a fair hearing. They claimed, in particular, that admitting evidence given by X was incompatible with the guarantees of fair hearing; that the court refused to seek expert opinions requested by the applicants; that the substantive findings were not based on reasonable assessment of the facts and were manifestly arbitrary, and that the court disregarded the alleged political motives of their prosecution.
They also complain under Articles 6 and 7 of the Convention that the criminal charges were based on unforeseeable and extensive interpretation of criminal law and that they were convicted of criminal offences indistinguishable from regular commercial activities.
Relying on Article 18 in conjunction with Articles 6 and 7 of the Convention the first applicant claims that his prosecution and conviction has pursued a purpose of obstructing his political activities and in particular of disqualifying him from standing in elections on the grounds of his criminal record.
QUESTIONS TO THE PARTIES
1. Having regard to the applicants’ specific allegations in respect of the criminal proceedings conducted following the Court’s judgment Navalnyy and Ofitserov v. Russia (nos. 46632/13 and 28671/14, 23 February 2016), did they receive a fair hearing by an independent and impartial tribunal in accordance with Article 6 of the Convention?
2. Did the acts for which the applicants were convicted constitute a criminal offence under national law at the time when it was committed, as envisaged by Article 7 of the Convention? In particular, was the offence of which the applicants were convicted clearly defined in law (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260‑A, p. 22, § 52; and Navalnyy and Ofitserov v. Russia, cited above, §§ 110-115 and 126)?
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