Navalny loses two appeals and starts 2.8-year prison sentence

Navalny loses two appeals and starts 2.8-year prison sentence
Opposition activist Alexey Navalny was in court twice over the weekend and both his appeals against a jail sentence and slander charges were rejected. He now starts a 2.8-year sentence in a Russian penal colony.
By bne IntelliNews February 22, 2021

Anti-corruption activist and opposition politician Alexei Navalny lost an appeal against a 2.8-year jail sentence on fraud charges at a court hearing on February 20 and began his sentence.

A Russian court handed down a 2.8-year jail sentence at a closely watched hearing in Moscow on February 2 for breaking the parole terms of an earlier suspended sentence.

Separately, another court hearing found Navalny guilty of slandering a WWII veteran, whom he called a “traitor” in a tweet and for which he was fined $11,000. Russians take WWII very seriously, which they call “the Great Patriotic war” in which some 25mn Soviet citizens died. The case is designed to discredit Navalny in the eyes of the public for disrespecting those that fought in that conflict, according to Russia watchers.

The European Court of Human Rights (ECHR) ruled that Russia should "immediately" release Navalny from jail on February 17, a ruling the Kremlin clearly intends to ignore after Russian Foreign Minister Sergei Lavrov laid out new rules of the game at the start of February and said explicitly Russia would no longer tolerate international meddling in what it regards as its domestic affairs.

The double legal defeat was widely expected, as the Kremlin has gone on the offensive after Navalny called two nationwide protests that saw some 100,000 demonstrators come out across the country – the biggest street protests in almost a decade. However, cold weather and lukewarm support for Navalny by the general public has seen repeat protests called off until the spring.

Russian President Vladimir Putin lashed out at the West over the weekend, claiming it was using the issue of Navalny to “contain” Russia – a message that has found some resonance with the Russian public.

After the court's decision to reject the appeal Navalny was led from the courtroom in handcuffs and will be transferred to one of Russia’s many penal colonies in the interior of the country.

Navalny made a defiant speech to the judge that referenced the Bible and the Harry Potter saga. In a new development he emphasised his faith in God, which he has not done before. He also said that he believed in the righteousness of his cause, continuing the religious theme. About 80% of Russian profess to be Orthodox Christians, although they are not particularly strict adherents. However, conservative Orthodox values underpin Russia’s relatively conservative attitudes.

“Our country is built on injustice. But tens of millions of people want the truth. And sooner or later they’ll get it,” Navalny told the court, as cited by Reuters. Navalny said he had no regrets about returning to Russia from Germany on January 17, where he was immediately arrested, and that his “strength was in truth”.

“You’ll burn in Hell for all of this,” Navalny told the court.

Asked to comment on Navalny’s political future after the court decision, Kremlin spokesman Dmitry Peskov told reporters: “It is absolutely none of our business”.

Navalny appeared in court again on the same day for the culmination of a separate trial on a charge of slander. The court found him guilty and fined him RUB850,000 ($11,500).

Navalny’s comments about the veteran were a criticism of his participation in a promotional video backing constitutional reforms last year that will let Putin run for two more terms in the Kremlin after 2024 if he wants.

Navalny described the people in the video as traitors and corrupt lackeys. His lawyers argued that his comments were an insult but not defamation, an argument the court rejected.

ECHR

The decision to jail Navalny puts Russia on the path for yet another clash with the EU, which has a meeting of ministers scheduled for February 22 which is anticipated to retaliate with new sanctions, although some expect those sanctions to be merely symbolic.

More difficult for the Kremlin was the European Court of Human Rights (ECHR) ruling that Russia should "immediately" release Navalny from jail on February 17,  which Russia is obliged to comply with.

The ECHR ruled that Russia’s should “immediately” release Navalny and has previously ruled that his constant arrests and harassment is politically motivated.

"On February 16, a Chamber of seven judges of the Court decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the government of Russia, under Rule 39 of the Rules of Court, to release the applicant (Navalny). This measure shall apply with immediate effect," the Strasbourg-based court said in its ruling, posted on Navalny's website on February 17 as cited by RFE/RL.

Russian Justice Minister Konstantin Chuychenko responded that the court's demand was "unreasonable and unlawful," saying there were “no legal grounds” for Navalny’s release from custody.

It is not clear what ECHR or the EU can do if Russia ignores the ECHR ruling.

The ECHR and Navalny supporters believe that Navalny’s life is in danger while he is in prison. In its decision, the court also referred to the “overall circumstances” of his detention.

Prior to making its decision, the European Court judges asked the Russian authorities to clarify the following points, Medusa reports:

Given the near-lethal attack on Navalny with a chemical nerve agent in August 2020, and the fact that the Russian authorities haven’t established the perpetrators of this apparent assassination attempt, does the risk to Navalny’s life persist?

What measures are the Russian authorities taking to safeguard Navalny’s life and well-being?

Are the conditions of his detention being subject to regular independent monitoring?

After receiving answers from the Russian prosecutors, the European Court ruled that the “nature and extent of risk” to Navalny’s life had been demonstrated “prima facie.”

Rule 39 is an emergency mechanism that allows ECHR judges to take extraordinary interim measures to protect an applicant before considering their complaint. It has been used previously to prevent deportations and extraditions of applicants if there’s a real threat to their life or health.

Russia joined Parliamentary Assembly of the Council of Europe (PACE) in 1996 while Boris Yeltsin was president, and ratified its founding document two years later. Another consequence of joining was the Soviet-era laws making homosexuality a criminal offence – the notorious Article 121 – were repealed.

Failure to comply with the ECHR’s Rule 39 is considered a violation of Article 34 of the convention, which calls on signatories to co-operate with the European Court.

While the ECHR has called for Navalny's release, the rules leave open the possibility for the Russian authorities to propose alternative solutions that remove the threat to Navalny life, but leave him behind bars. Usually the ECHR sets a time frame for these alternative measures to be implemented but that hasn't happened in Navalny's case.

Russia has also put various laws in place to curb the ECHR’s powers on Russian courts.

According to the Russian Constitution and federal constitutional law, the country’s Constitutional Court judges can declare a decision from an international court “impracticable,” at the request of the Russian President, Cabinet or the Supreme Court, reports Medusa. But even then, it can only make this ruling if the international court’s decision “contradicts the foundations of law and order in the Russian Federation.”

Russia’s Justice Ministry has already called the ECHR’s order “deliberately impracticable,” but it has no jurisdiction in the case and the Constitutional Court, which does have jurisdiction, has yet to comment publically.

While the ECHR has called for an “immediate” release, there is no timeline for Russia’s obligation to comply. However, sending Navalny to jail is a clear decision to ignore the “interim measures” ordered by the ECHR under Rule 39. However, by moving Navalny from the notorious Matrosskaya Tishina remand prison, where tax layer Sergei Magnitsky died in 2009, the Russian authorities can argue that the circumstances of Navalny detention have changed and so the ECHR ruling is no longer valid.

Given the confusion, there is now likely to be an angry diplomatic exchange, but the extreme reaction of ejecting Russia from PACE is unlikely. Some EU members tried to have Russia ejected from PACE over its annexation of Crimea, and its right to vote in the council was suspended, but the latter caved in after the president of PACE re-admitted Russia without imposing any sanctions in January, apparently because the body needed Russia’s membership fees.

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