Karinna Moskalenko: Aleksei Pichugin’s Sentence Has Zero Legitimacy

posted 12 Jun 2017, 06:52 by Rights in Russia   [ updated 12 Jun 2017, 07:39 ]
6 June 2017

Source: Moscow Helsinki Group [original source: Оpen Russia]

The European Court of Human Rights (ECtHR) has upheld Aleksei Pichugin’s application. The former employee of the Yukos security service filed a complaint with the ECtHR regarding a violation of his right to a fair trial. Lawyer Karinna Moskalenko, a member of the Moscow Helsinki Group and a founder of the International Protection Centre, talked about the Strasbourg court’s decision and about the prospects for its implementation by Russia.

What are the key points the European Court has looked at in its decision?

The European Court’s decision is fairly brief, and there’s an explanation for this. The Court analyzed violations of the most fundamental rights and indicated that there was no need to analyze the rest. The same thing happened with the first case, where they uncovered the one paramount violation, which devalued the entire legal procedure.

Does the decision require that Russia revisit the sentence against Pichugin?

Usually, the Russian authorities refuse to revisit a case when articles of the European Convention have been violated other than Article 6 — the right to a fair trial. But in instances when a violation of that article of the European Convention has been declared, there is a general opinion that a new trial needs to be held. The Russian UPK [Criminal Procedure Code] says quite categorically in Articles 413 and 415 that given a declaration of a violation of the right of a person convicted to a fair trial, he has the right to a review of the case under new circumstances. In the Pichugin case, violations were declared of paragraphs 1, 2, and 3 of Article 6. Even if a violation had been declared of only one paragraph of Article 6, he would without question have the right to a review of the case. But we have not had a very positive practice when it comes to this defendant, who has now for a second time been deemed a victim of a violation and an unfair trial. The first time, the Supreme Court committed a strange and inexplicable act: they agreed that the hearing on the case had to be renewed. The very same Supreme Court plenum so resolved, itself did the examining, and itself made the decision as the court of original jurisdiction. But if this is the court of original jurisdiction, then where is the direct investigation of the evidence? Where are the interrogations? Where is the investigation of case materials?

I think the authorities have badly politicized this case, and they are looking for any possible means not to restore Pichugin’s violated rights via a correct or legal path, knowing the attitude of the top echelons of power toward this particular Russian citizen.

What is the likelihood the sentence will be reconsidered?

If we’re talking about Articles 413 and 415 of the UPK, then the likelihood the case will be reconsidered is one hundred percent. If we're talking about how the Russian authorities sometimes behave, then here I wouldn’t even try to estimate the likelihood because this is a political question. If we examine the purely legal question, of course, the sentence should be vacated, and the case should get a new review that ensures the protection of all the rights guaranteed both by national law and by international standards, including the criteria of the ECtHR.

Notice that the ECtHR is not addressing the topic of his sentence, his conviction; it is studying whether there was opportunity to defend Pichugin in the trial. Lawyer Ksenia Kostromina argued this question brilliantly, demonstrating these violations, when the defence was denied access to justice under the same terms the prosecution had. I support Ksenia Kostromina’s position on this matter. She was able to prove this, and it was based on this evidence that the ECtHR issued its decision.

In a rule-of-law state, judges implement the laws of their state, Constitution, and UPK and the decisions of the ECtHR. When it ratified the convention, Russia recognized a binding obligation to implement the European Court’s decisions. This is recognized by all the states that recognize the European Court’s jurisdiction, virtually all the European countries, with the exception of Belarus, which is not a member of the Council of Europe.

What does failure to implement the ECtHR decision mean for Russia?

There is a special body that tracks implementation of European Court decisions. Since the Convention’s protocol 14 went into effect, it has kept careful track of cases and has urged countries to implement ECtHR decisions. How can it compel? By all kinds of moral influence—diplomatically or by extreme measures — by passing a resolution on the failure to implement decisions. In general, no single country has yet reached the point of such a resolution. Russia has had that possibility, that negative chance, ever since the Constitutional Court was entrusted with the obligation, utterly alien to it, of resolving issues involving failure to implement ECtHR decisions. The Constitutional Court cannot decide these questions; the Court was put in a situation that violated the Russian Constitution. This is an amazing phenomenon, when the supreme representative organ of the legislative branch and the Constitutional Court, which is the main upholder of the Constitution, jointly violate the Russian Constitution. And it is a very dangerous precedent.

People say you have to live a long time in Russia. I think all this will pass, too. There are the Constitution’s positions, and they are unshakable, and there are postulates recognized by all the member countries of the Council of Europe, and if they no longer exist, the world will become unpredictable. This is undesirable for every single country not only in the Council of Europe but in the world. Unpredictable behavior by one’s neighbors and their refusal to carry out the obligations they have taken on — these are very dangerous symptoms, and they must be immediately eliminated by the reasonable elements of our regime.

With regard to Pichugin’s fate, if he was sentenced to life imprisonment but at the same time the decision was made as a result of an unfair trial, then that sentence has zero legitimacy today. Therefore, either three months will pass and the decision of the ECtHR will become final, whereupon Russia is required to reopen the case under new circumstances, or else Russia becomes a violator of its obligations, an unpredictable member of the commonwealth of states, which are beginning to beware of their neighbor, because this neighbor that does not carry out the obligations it has taken on is dangerous. I think the Russian authorities should not let it come to that.

Translated by Marian Schwartz