Navalnyy and Ofitserov v. Russia (Application no.

78193/17)

Third Party Intervention of the European Human Rights Advocacy Centre

(EHRAC) and Professor Jeffrey Kahn

Summary

1. In Part I, Professor Jeffrey Kahn makes tlu·ee principal submissions:

(a) Historically weak foundations for judicial independence in Russia undermine respect for
Council of Europe standards;

(b) Russia operates a "dual state" in which judicial independence is de facto limited or
eliminated in cases of political interest to the state;

(c) The Travaux Preparatoires evidence concern in the Preparatory Commission of the
Council of Europe about dual-state practices symptomatic of regression to authoritarianism.

2. In Pati II, EHRAC makes four principal submissions:

(a) A1iicle 18 should be interpreted broadly, in light of its core purpose - the protection of
democracy - which is fundamental to the Convention system;

(b) Article 18 is applicable to Articles 6 and 7 because it has broad application across all the
Convention rights and freedoms. It is also applicable because: Article 6 incorporates
express and implied restrictions to the elements of the right to a fair trial; and Article 7 is
not absolute - its interpretation depends on the pa1iicular context of the case.

(c) Article 18 should be recognised as applying to the totality of the criminal justice process;

(d) Article 18 should be applicable to civil proceedings which are politically motivated.

1
Part I

(a) Historically weak foundations for judicial independence in Russia undermine respect for
Council of Europe standards.

3. Judicial independence is the exception, not the rule, in Russian history. 1 Its Soviet era low
point is well documented. 2 In the words of a former Commissar of Justice, "our judge is above
al] a politician, a worker in the political field," whose courtroom " is, and still remains, the only
thing it can be by its nature as an organ of the government power - a weapon for the
safeguarding of the interests of a given ruling class ... A club is a primitive weapon, a rifle is a
more efficient one, the most efficient is the court ... " 3

4. A persistent theme, varying only in degree, has been political control of judicial institutions. In
the Soviet Union, "there was no such thing as an independent court oflaw, especially in political
cases. The verdict was determined not by the judiciary but by the executive - the party-state
authorities. " 4

5. Seventy years of Soviet rule and centuries of Tsarist autocracy are not easily overcome. 5
Substantial legal reforms were catalyzed by Russia' s quest for Council of Europe membership,
which was granted notwithstanding Russian noncompliance ab initio. 6 But welcome statutory
improvements do not always become entrenched practice, especially with regard to judicial

1
The 1864 legal reforms are as celebrated as they are short-lived. The inspiring story of Judge Anatolii Koni in
the Vera Zasulich trial stands as a lonely example of judicial independence. Richard S. Wortman, The
Development ofa Russian Legal Consciousness 282-84 (Chicago UP, 2010). More typically, "the police, or the
executive authority in general, stood in the opinion of society as it were above the Law Courts . .. The consequence
of this was interference in court cases, and the courts hence represented a somewhat weak instrument for the
discharge of justice." P. S. Squire, The Third Department 178 (CUP, 1968) (quoting contemporaneous memoirs) .
2
See, sl..:.&., Eugenia Semyonovna Ginzburg, Journey into the Whirlwind (HBJ, 1967); George Katkov, The Trial
of Bukharin (Stein & Day, 1969); Roy A. Medvedev, Let History Judge (Vintage, 1971).
3
Vladimir Gsovski, Soviet Civil Law 241 ( 1948) ( quoting H.B . Kpr,meHKO, CyJJ,oycrpoifoTso PC<l>CP - neKUHH
ITO TeOpllli 11 HCTOpHH CYJJ.OYCTPOMCTBO, 1923 r.).
4
Archie Brown, The Rise and Fall of Communism 577 (Ecco, 2009).
5
See, sl..:.&., William E. Pomeranz, Law and the Russian State: Russia's Legal Evolution from Peter the Great to
Vladimir Putin 2 (Bloomsbury, 2019) ("[T]he legitimacy of every ruler - from Peter the Great to Vladimir Putin
- ultimately has relied on the elevated position of the state. Law appears as a secondary actor. It inevitably
follows the distinct needs of the state, which is unrestrained by natural law or social contract theory.").
6
PACE, Report on the Conformity of the Legal Order of the Russian Federation with Council of Europe Standards,
Doc. AS/Bur/Russia (1994) 7 of28 Sept. 1994; PACE, Doc. 7443, Report of the Political Affairs Committee on
Russia' s request for membership of the Council of Europe (Rapporteur: Mr. MueWemann), 2 Jan. 1996; PACE,
Doc. 7463, Opinion of the Committee on Legal Affairs and Human Rights on Russia's application for membership
of the Council ofEurope (Rapporteur: Mr. Bindig), 18 Jan. 1996; Peter Leuprecht, "Innovations in the European
System ofHuman Rights Protection: Is Enlargement Compatible with reinforcement,"8 Transnat'l L. & Contemp.
Probs. 313, 329 (1998) ("It is not without significance that, in its Opinion on Russia's request for membership,
the Parliamentary Assembly, while referring to Article 4 of the Statute, actually departs from its wording by using
the future tense[.]") (internal footnote omitted).

2
 independence. 7 In the words of the 19th-century Russian satirist Saltykov-Shchedrin: "The
severity of the laws is compensated by the non-obligatory nature of their observance." 8

(b) Russia operates a "dual state" in which judicial independence is de facto limited or eliminated
in cases of political interest to the state.

6. As in the past, cou1ts in Russia today serve a dual purpose. In ordinary cases, they
accommodate individual rights and public needs in a modern and often sophisticated way. But
in political cases, the judiciary remain susceptible to instrumental use as political weapons. The
distinction between " ordinary" and "political" cases is an unwritten one, knowable ex post and
determined by exercise of power. This "dual-state" phenomenon has been well documented as
a feature of authoritarian regimes. 9

7. The leading empirical US scholar on the use of Russian courts, Dr. Kathryn Hendley,
consistently notes the "dualistic legal state" in which there is competent administration of
justice in routine cases, but "the political and economic elite can and do interfere when their
core interests are in play." 10

7
See, ~ ' Sabine Leutheusser-Schnarrenberger, Doc. 11993, Allegations of politically-motivated abuses of the
criminal justice system in Council of Europe member states, Report and Draft Resolution of the Committee on
Legal Affairs and Human Rights, 7 August 2009, at 4.3.4 & 4.3 .5 (resolution unanimously approved and
concluding "the traditionally subservient attitude among many judges and prosecutors inherited from the past has
not yet been fully overcome; on the contrary, after an encouraging new beginning in the early 1990s,judges are
subjected to an increasing level of pressure aimed at ensuring convictions in almost all cases brought to court by
the Prosecutor's Office;" and "the vectors of pressure still include old-style unofficial methods described as
"telephone justice", but also official performance evaluation and disciplinary mechanisms."); Bill Bowring,
"Russia's Accession to the Council of Europe and Human Rights: Compliance or Cross-Purposes?" 6 E.H.R.L.R.
628-643 (1997); Kathryn Hendley, "'Telephone Law' and the ' Rule of Law': The Russian Case," 1 Hague J. on
the Rule ofLaw 241 , 259 (2009) ("Over the past two decades, urged on by the West, profound institutional reforms
have been made to the judicial system. To be sure, the resulting shift in incentives has changed judicial behavior,
but only at the margins. The practice of 'telephone law' has been slow to disappear.") (internal footnotes omitted);
Jeffrey Kahn, "The Rule of Law Under Pressure: Russia and the European Human Rights System," 44 Rev. of
Central & E. Eur. Law 275-295 (2019) .
8
Quoted in Stephen White, Understanding Russian Politics 106 (CUP, 2011).
9
See,~. Ernst Fraenkel The Dual State: A Contribution to the Theory ofDictatorship (OUP 1941).
°
1
Kathryn Hendley, "Are Russian Judges Still Soviet?" 23 Post-Soviet Affairs 240, 267 (July-Sept. 2007). This
remained Dr. Hendley's conclusion in 2018: "Russians tend to avoid the courts when faced with a dispute
involving the state or a well-connected individual (regardless of whether such connections are political or
financial) . It is in these categories of dispute, which are relatively rare, that Russians see a genuine risk of political
interference." Kathryn Hendley, "To Go to Court or Not? The Evolution of Disputes in Russia," A Sociology of
Justice in Russia 63-64 (Marina Kurkchiyan & Agnieszka Kubal, eds., CUP, 2018).

3
 8. Similar findings by respected scholars all support this dual-state conclusion, including those by
Anders Aslund, 11 Karen Dawisha, 12 Vladimir Gel'man, 13 Alena Ledeneva, 14 William
Pomeranz, 15 Daniel Triesman, 16 Maxim Trudolyubov, 17 and Vadim Volkov. I 8

9. Concern over political control of judicial proceedings in Russia leads courts in other countries
to refuse requests for extradition, unfreezing assets, or other legal assistance. 19

10. The crudest manifestation of the dual state, the infamous Soviet practice of "telephone justice"
( «Tenecpottttoe npaBo» [telefonnoe pravo ]), remains an observable legacy of the prior system. 20

11
Anders Aslund, Russia' s Crony Capitalism 51 (Yale UP, 2019) (noting of judicial reforms of 2000-2002: "All
this sounded good, but the main effect of the judicial reforms was centralization, making the judges dependent on
the presidential administration rather than the regional governors."). Aslund concludes that, following the 20 I 4
judicial mergers, "The whole judicial system was now put under full political control, being deprived of integrity
and independence." Id. at 52.
12
Karen Dawisha, Putin' s Kleptocracy: Who Owns Russia? 317 (Simon & Schuster, 2014) (describing among
the trends of President Putin's third term "the increase in the number of entrepreneurs arrested and imprisoned
on tax evasion and other charges as part of a large-scale increase in the use of the corrupt criminal justice system
as a vehicle for corporate raiding by regime insiders.") .
13
Vladimir Gel'man, Authoritarian Russia: Analyzing Post-Soviet Regime Changes 81 (Pittsburgh UP,
2015)(describing Putin's policy of a ' dictatorship of law' as "very much dissimilar to the principle of the rule of
law: it is based on the purely instrumental use of formal institutions, or legal norms, as tools and means of coercion
by the dominant actor toward outsiders to the imposed consensus ... This biased set of rules and norms, as well as
their selective enforcement by the coercive apparatus of the state, became an integral part of imposed consensus.
It did not lead to the emergence of the rule of law, but rather served as a smokescreen for informal governance
based upon the arbitrary rule of the Kremlin and its loyalists.") (internal footnotes omitted).
14
Alena V. Ledeneva, Can Russia Modernise? Sistema. Power Networks and Informal Governance 161-62 (CUP,
20 I 3) ("Legal experts whom I interviewed in Russia largely agree on the following formula: although it is
ridiculous to suggest that every court case in Russia is decided according to directives from above, ways to
influence a particular case can be found if needed . In other words, the pressure does not have to be pervasive to
be fully effective.").
15
Pomeranz, supra note 5, at 7 ("In fact, everyday law has existed in one form or another throughout most of
Russian history, as has, one should hasten to add, the ability of the Russian state to engage in selective, and highly
coercive, punishment. The duality of law remains a consistent feature of the Russian legal system, which major
implications for how people engage with the law.").
16
Daniel Triesman, "Can Putin Keep His Grip On Power?" Current History (Oct. 2013) at 255 ("These laws
became the instruments of what some took to calling ' velvet repression.' Rather than putting many people in jail,
the authorities aimed to intimidate and distract the opposition with drawn-out investigations, searches, and
interviews. Still, a few arrests and trials were staged to publicize the new order and disable protest organizers.").
17
Maxim Trudolyubov, "Russia's Trials of History," The Russia File, Mar. 28 , 2019 ("Russia still lives in a state
of unreconciled conflict between a set of legislation that it is unable or unwilling to enforce and an unwritten set
ofrules by which the country really runs. The right to own property and run businesses is all fine, but there is real
life and it has red lines, and the Kremlin leaders apparently still need show trials to draw those lines.").
18
B. BonKoB, A. ,z::i:MHrpttesa, M. TI03AHHKOB, K. T11Taes, PoccIIBCKHe cy.UbH: cou11onorw1ecKoe 11ccne.uosatt11e
npocpecc1111 210 (HopMa 2015) [V. Volkov, A. Dmitrieva, M . Pozdnakov, K . Titaev, Russian judges: A
sociological study of the profession] ("The judge becomes a bureaucrat, part of a large machine that limits his
independence. The judge, in order to continue to work in this system, assumes this role and agrees to it. This
creates a unique professional situation for the Russian judge. Beyond a purely academic discussion, i.e. on specific
legal issues, they tum out to be the most qualified oflawyers, but are outside the legal discussion, outside the legal
community.") [Translation by Prof. Kahn]
19
See,~, Leutheusser-Schnarrenberger at 38 n.159 (listing decisions of courts in the UK, Czech Republic,
Lithuania, Switzerland, the Netherlands, Estonia, Germany, Cyprus & Israel).
°
2
Kathryn Hendley, " Varieties of Legal Dualism : Making Sense of the Role of Law in Contemporary Russia,"
29 Wisc. Int'! L. J. 234, 258 (2011) (" 'Telephone law' remains a fact of life for those who come within the
cross-hairs of the Kremlin or regional leaders.").

4
 But it is only one modus operandi of Russia's dual state. 2 1 Scholars provide evidence of
political interference both in categories of cases and specific trials.

11. Maria Popova, a political scientist at McGill University, has rigorously examined defamation
lawsuits, which are filed in Russia at a per capita rate that is 100 times that found in the United
Kingdom. 22 She notes that "the largest share of defamation lawsuits is filed by plaintiffs who
hold state office" and that these state officials both "win more often and they receive larger
moral compensation awards than ordinary citizens, even including rich private business actors
who probably have access to the best legal representation that money can buy." 23 Noting the
"systematic advantage" that these officials enjoy as defamation plaintiffs, Popova concludes
that this "points to the lack of clear separation between the judiciary and the political branches
of government." 24

12. The Court frequently notes how defamation suits are used by Russian officials to suppress
criticism on matters of public concern. 25 The manipulation is almost always the same: a veneer
of formal comp! iance with Convention requirements issues from higher judicial instances while
lower judicial bodies nevertheless continue to award damages to official plaintiffs without
elaboration or reasoning and in summary fashion .26 Thus, the attempt is made to obscure the
systemic manipulation oflaw and courts.

13. Relatedly, slander was recriminalized in Russia sho1tly after the election of Vladimir Putin to
a third presidential term. 27

14. It is similarly revealing that the most politically sensitive criminal cases in Russia share the
application of iqentical theories of culpability. Article 160 of the RF Criminal Code,
embezzlement, has been the central criminal charge in the prosecutions, inter alia, of both the
applicant 28 and Mikhail Khodorkovskiy. 29 Article 160 is one of what Professor Jordan Gans-
Morse calls "favored charges used to apply pressure" on private enterprises targeted by
predatory state officials:

Unlike crimes such as murder or theft, which are reported to the police by citizens,
these economic crimes require proactive investigation by legal authorities, providing
officials with significant discretion to probe a wide range of firms .... [A]fter 2003 , the

21
See,~. EacMaHttoe npasocymie: ypoKM caM006opotth1. Iloco6tte nm1 ansoKaToB: npo4TM Mnepenatt npyroMy
(KapttHHa MocKanettKO M JieoHMA lIHKMTMHCKMH, peA. 2004) [Basmanny justice: Lessons in Self-Defense. A
Handbook for lawyers to read and pass to others, Karinna Moskalenko & Leonid Nikitinskii, eds. 2004].
22
Maria Popova, "Journalists, Judges and State Officials," A Sociology of Justice in Russia, supra note l 0, at 141.
23
Id., at 142.
24
Id. This "systematic advantage" may explain why Prof. Popova finds "no strong indication that political actors
orchestrate the outcomes of defamation cases outside of the judicial decision-making process." Id. at 142-143.
That process is designed to facilitate the outcomes observed.
25
Margulev v. Russia, App. No. 15449/09, 8 October 2019, para. 50 (citing five cases). See also Skudayeva v.
Russia, App. No. 24014/07, 5 June 2019; Kharlamov v. Russia, App. No . 27447/07, 8 January 2016 (defamation
suit by state university against professor for criticism of academic senate election); Krasulya v. Russia, App. No.
12365/03 , 22 May 2007 .Uournalist's criminal defamation conviction for criticism ofregional governor).
26
See,~. Margulev, para. 52; Skudayeva, para. 37; Krasulya, ,i 42.
27
<l>e,AepaJibHhlH 3aKOH OT 28 MIOJI51 2012 r . N 141-<1>3 «O BHeceHMM M3MeHeHMH B YroJJOBHhIH KO,[\eKC
PocCMHCKOH <l>e,AepaUMM 11 OT,AeJlhHble 3aKOHO,[\aTeJlbHbie aKTbl PocCMHCKOH <l>eAepau1rn» (inserting Article 128.1
(«Knesern») into the RF Criminal Code).
28
Navalnyy and Ofitserov v. Russia, App. Nos. 46632/13 & 28671/14, 4 July 2016, iJiJ124-127. The Court, having
established that the domestic courts "applied criminal law arbitrarily and found the applicants guilty of acts
indistinguishable from regular commercial activities" in violation of ECHR Article 6, considered unnecessary
further examination under ECHR Article 7.
29
Compare Navalnyy and Ofitserov v. Russia, App. Nos. 46632/13 & 28671/14, 4 July 2016, para. 61-65 and
Statement of Facts, Navalnyy and Ofitserov v. Russia, App. No. 78193/17, communicated on 21 December 2017,
with Khodorkovskiy and Lebedev v. Russia, App. Nos. 51111/07 and 42757/07, 14 January 2020, ,i,i 299-301.

5
 initial year of the Khodorkovsky Affair, there was a notable increase in the number of
economic crimes uncovered by Ministry of Internal Affairs investigators: Between
2003 and 2004, fraud- and embezzlement-related cases, which since the late 1990s had
remained relatively constant, increased nearly 15 percent. 30

15. The seriatim criminal trials of Mikhail Khodorkovskiy present the dualist state at its apogee. 3 1
Professor Richard Sakwa, one of the UK's leading Russia experts, concluded "the judicial
system manifestly engaged in a political trial" that "not only damaged state development but
also strengthened the arbitrariness of the administrative regime. " 32

16. The state's peculiar theory of embezzlement - the recurrent criminal charge against the top two
leaders of the political opposition in the last twenty years - was the subject, inter alia, of
analysis by Professor Kahn and other scholars convened by the Presidential Council of the
Russian Federation for Civil Society and Human Rights to examine the second criminal
conviction of Mikhail Khodorkovskiy and Platon Lebedev in 2010.33 His report, along with
the reports of the other eight experts and the Presidential Council's own observations and
recommendations, were personally delivered to President Dmitrii Medvedev by Mikhail
Fedotov, Chairman of the Council , on December 27, 2011. 34 As summarized by the Court:

The report contained contributions from a group of Russian, European and American
experts and scholars. None of the experi group found any support for the allegations of
embezzlement or money laundering. Having considered the expert reports, the
Presidential Council for Civil Society and Human Rights issued a series of
recommendations in which, amongst other things, it called for the judgment to be
repealed and describing the second case as ' a miscarriage of justice': in particular, the
report held that the applicants were convicted for acts that were not directly prescribed
by the criminal law and did not contain features of a corpus delicti, as well as without
due process. 35

17. The application of Article 160 in Khodorkovskiy's and Lebedev's case was found to be at
variance with traditional elements of embezzlement in Russian law and was inconsistent with
the Russian Supreme Court's interpretation of relevant provisions of the Criminal Code. It is

30
Jordan Gans-Morse, Property Rights in Post-Soviet Russia: Violence, Corruption, and the Demand for Law 88-
89 (CUP, 2017).
31
Trudolyubov, supra note 17 ("Show trials as the language of power is one such feature . The political and
economic field in Russia looked one way before the Mikhail Khodorkovsky affair of 2003 and a quite different
way after the trial (two trials, in fact) .").
32
Richard Sakwa, Putin and the Oligarch: The Khodorkovsky - Yukos Affair 51 (Tauris, 2014). See also
Pomeranz, supra note 5, at 149-150 ("Although the proceedings took on all of the trappings of a political trial, the
state insisted that the case remained a criminal matter ... . It left in tatters the 2001 Criminal Procedure Code,
which proved unable to withstand the specific demands of the state."); Aslund, supra note 11 , at 51 ("The Yukos
affair put the whole judicial reform into doubt .. . [T]he government won all court judgments, proving that these
courts were not independent from government."); Jeffrey Kahn, "The Richelieu Effect: The Khodorkovsky Case
and Political Interference with Justice," A Socio logy of Justice in Russia, supra note 10, at 231 -258.
33
Report Prepared for the Presidential Council of the Russian Federation for Civil Society and Human Rights
regarding the Verdict of the Khamovnichesky District Court of the City of Moscow against M.B.
Khodorkovskiy and P.L. Lebedev (Criminal Case N 1-23/10, 27 December 2010). A Russian translation of this
report is available at: http ://www.president-sovet.ru/documents/read/58/. The report is available in English in a
special issue of the Journal of Eurasian Law, Vol. 4, No. 3 (2011), with an introduction to the report by
Professor Kahn.
34
Pa6oticUI scTpeqa c coseTHm<OM Tipe311,nettTa, npe,nce,L1aTeJ1eM Cosern no pa3BHTHIO rpa)l(.[laHcKoro o6mecTsa
H npasaM qenoseKa MHxa11noM <l>e.[IOTOBbIM [Working meeting with Presidential Advisor, Chairman of the
Council for the Development of Civil Society and Human Rights, Mikhail Fedotov], 27 December 2011 ,
http ://kremlin.ru/events/president/news/ 14153 .
35
Khodorkovskiy and Lebedev v. Russia, Nos. 11082/06 and 13772/05 , 25 Oct. 2013 , ,r 362. See also
Khodorkovskiy and Lebedev v. Russia (No . 2). No. 5111/07, 14 Jan. 2020, ,r 364.

6
 revealing that this strained theory was preferred to more straightforward theories of culpability
available under other provisions of the Criminal Code but eschewed in the Russian state' s
prosecution of Khodorkovskiy.

18. Following the inauguration of Vladimir Putin to a third presidential term, several of the experts
as well as the head of the Presidential Council ' s working group responsible for the organization
of the expert analysis, retired RF Constitutional Comt Justice Tamara Morshchakova, were
subject to criminal investigative action taking the form , inter alia, of the issuance of search
warrants for homes and offices, seizure ofprope1ty, and interrogation.36 A letter from Chairman
Fedotov to Professor Kahn dated February 13, 2013 , described the start of this criminal
investigation. 37

19. Although the investigation was ultimately closed having failed to discover any corpus delicti,
the effect on those subject to these measures was severe. One Russian expert, Sergei Guriev,
entered into self-imposed exile in France. 38 The Council of Europe' s Commissioner for Human
Rights criticized the use of criminal investigative measures and threats of prosecution as tools
to apply pressure against the experts. 39

(c) The Travaux Preparatoires evidence great concern in the Preparatory Commission of the
Council of Europe about the dual-state practices symptomatic of regression to authoritarianism.

20. It was precisely this concern that Pierre-Henri Teitgen expressed seventy years ago as
Rapporteur of the Committee on Legal and Administrative Questions for the future of the
Council of Europe and European Convention. Presenting the Committee' s report to the
Consultative Assembly on 7 September 1949, he defended "a general definition of a list of
guaranteed freedoms" put into practice in each country under the supervision of an international
court:

But - and this is the essential point - the international collective guarantee will have,
as its purpose, to ensure that no State shall in fact aim at suppressing the guaranteed

36
See, .\,.,&, Jeffrey Kahn, "In Putin ' s Russia, Shooting the Messenger," New York Times, Feb. 25, 2013
(https://nyti .ms/2TlUDyi); Tom Balmforth, "Critics Of Khodorkovsky Verdict In Kremlin Crosshairs," Radio
Free Europe/Radio Liberty, March 27, 2013, https://www.rferl.org/a/khodorkovsky-crime-trial/24940316.html;
Jeffrey Kahn, "The Law Is a Causeway: Metaphor and the Rule of Law in Russia," in The Legal Doctrines of the
Rule ofLaw and the Legal State (Rechtsstaat) (Ius Gentium, Vol. 38) 229 (James Silkenat, James Hickey, & Peter
Barenboim, eds., Springer, 2014) at 244-250 (detailing reprisals against the experts and Council); Jeffrey Kahn,
"The Richelieu Effect: The Khodorkovsky Case and Political Interference with Justice," in A Sociology ofJ ustice
in Russia (Marina Kurkchiyan & Agnieszka Kubal , eds., CUP, 2018) at 231-258.
37
Jeffrey Kahn, "Freedom of Expression in Post-Soviet Russia," 18 UCLA Journal of International Law &
Foreign Affairs 1 (Fall 2013) at 28-30 (reproducing facsimile and translation of letter from Presidential Council
Chairman Mikhail Fedotov to Jeffrey Kahn, dated Feb. 13, 2013).
38
Sergei Guriev, "Why I Am Not Returning To Russia," New York Times, June 5, 2013
(https://nyti.ms/2Nldl5E).
39
Report by Nils Muifoieks Commissioner for Human Rights of the Council of Europe Following his visit to
the Russian Federation from 3 to 12 April 2013 , CommDH(2013)21 , 12 November 2013, at iJ 178 ("The
Commissioner would like to stress that, as a matter of principle, experts should be in a position to freely express
their opinions on different subjects, without any fears of possible consequences. Any pressure applied on experts
because of the opinions they voice or conclusions they reach may have a 'chilling effect' on all other persons
participating in the debate, making them increasingly reluctant to share their knowledge and experience. The
independent public expertise presupposes that invited experts pronounce their opinions, which could then be
taken on board by the competent decision-makers making their own choices as to preferred course of action.
Any doubts about their independence and impartiality can be voiced in the course of discussion, but should not
be invoked as grounds for prosecution.").

7
 freedoms by means of minor measures which, while made with the pretext of
organising the exercise of these freedoms on its territory, or of safeguarding the letter
of the law, have the opposite effect. 40

21 . This "pretext of organising the exercise of these freedoms ... or of safeguarding the letter of the
law" manifests itself in executive control of judicial institutions manipulating ordinary laws to
accomplish the will of the state in select cases - the dual state. That was the anxiety motivating
the establishment of a supervisory international institution. The tenn, after all, was coined by
Fraenkel as a practicing lawyer in 1930s Germany, and his book was completed after his escape
from the Nazis in 1938. 41

22. M. Teitgen recognized this danger - to be remedied by an international tribunal - as emergent

when the state " intervenes to suppress, to restrain and to limit these freedoms for, this time,
reasons of state; to protect itself according to the political tendency which it represents, against
an opposition which it considers dangerous; to destroy fundamental freedoms which it ought to
make itselfresponsible for co-ordinating and guaranteeing, then it is against public interest ifit
intervenes. Then the laws which it passes are contrary to the principle of the international
guarantee. " 42

23. A similar sentiment was expressed by Lodovico Benvenuti at the Consultative Assembly on 8
September 1949, emphasizing such dangers arising from abuse of legislative power:

In my opinion, what we must fear to-day is not the seizure of power by totalitarianism
by means of violence, but rather that totalitarianism will attempt to put itself in power
by pseudo-legitimate means. Experience has shown that it is sufficient to establish an
atmosphere of intimidation and terror in one single electoral campaign in a country for
all the executive acts establishing a totalitarian regime to acquire a character, an
appearance, of legality. 43

24. The late Professor Brian Simpson considered unsurprising the expression of such sentiments
by M. Teitgen and others whose experience of war in occupied France, "and the outbreak of
the cold war, gave rise to fear that the defeat of fascism had opened up a new threat from Soviet
totalitarianism." 44 As Professor Simpson notes:

What needs to be emphasized is that those who had experienced occupation knew,
though this could not always be said, so taboo laden was the subject, that under Gennan
occupation, paiticularly in France, those who ill treated the population were, not
infrequently, their own fellow citizens and their own government . .. . One message
which was learned in the occupied country, though not one which it was possible to be
wholly frank about in public, was that outside the actual zones of combat the worst
brutalities inflicted on individuals were likely to be inflicted by their own government,
operating through fellow citizens. 45

°
4
Collected edition of the "Travaux preparatoires" of the European Convention on Human Rights / Council of
Europe = Recueil des travaux preparatoires de la Convention europeenne des droits de l'homme / Conseil de
)'Europe. Vol. I (Martinus Nijhoff, 1975), 276.
41
Fraenkel, supra note 9.
42
Id., at 278.
43
Collected edition of the "Travaux preparatoires," Vol. II, 136.
44
A.W . Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European
Convention 602 (OUP, 2001).
45
Id. at 60 I.

8
 25. Thus, the solutions proposed centered on " an international European mechanism for protecting
individuals against their own governments." 46 That protection necessarily extended to
preventing the drift toward authoritarianism, and away from Council of Europe principles,
exemplified in the workings of a judiciary in a dual state.

Part II

(a) Article 18 should be interpreted broadly, in light of its core purpose - the protection of
democracy - which is fundamental to the Convention system.

26. Article 18 of the European Convention on Human Rights should be interpreted purposively,
not restrictively, taking account of its fundamental aim of upholding democratic rights : ' ... in
interpreting Atiicle 18 ... the direct link between human rights protection and democracy must
be taken into account. If the human rights of politically active persons are restricted for the
purpose of hindering or making impossible their participation in the political life of a country,
democracy is in danger'. 47 It is recalled that in Selahattin Demirta,~ v. Turkey (no. 2), Atiicle
18 was found to have been breached where criminal proceedings instigated against a leading
opposition politician during election campaigns were aimed at ' stifling pluralism and limiting
freedom of political debate, which is at the very core of the concept of a democratic society' .48

27. Account should be taken of the Travaux Preparatoires to the Convention, which establish that
Article 18

' .. . was drafted as a defence against abusive limitations of Convention rights and
freedoms and thus to prevent the resurgence of undemocratic regimes in Europe.
Article 18 of the Convention was intended to provide Europe with the new approach
needed in the "battle against totalitarianism", premised on the understanding that States
could always and would always find excuses or reasons to limit, restrict, and ultimately
hollow out individual rights and freedoms: the public interest in "morality, order, public
security and above all democratic rights" can all be abused for this purpose. ' 49

28. Furthermore, as Keller and Cori have emphasised:

' The drafters considered that State intervention with Convention rights is not in the
public interest where it comes about for the destruction of fundamental freedoms, for
"reasons of state" or to safeguard political tendencies against oppositional actors. An
undemocratic regime allows reasons of state to suffice as the justification of any
intervention by the authorities. Such a regime "arrogates to itself the right to limit
individual freedom, not in the sole name of a higher freedom, not in order to permit the
exercise of the freedom of all, but simply to defend its own dictatorship, its totalitarian
grip"', 50

(b) Article 18 is applicable to Articles 6 and 7

29. Article 18 is applicable to Articles 6 and 7 because Article 18 has broad application across all
the Convention rights and freedoms , and Article 6 incorporates express and implied restrictions

46
Id ., at 602.
47
Joint concurring opinion of Judges Jungwiert, NuJ3berger and Potocki in Tymoshenko v Ukraine, No.
49872/11 , 30 April 2013.
48
Selahattin Demirta~ v. Turkey (no . 2), No . 14305/ 17, 20 November 2018 , para. 273.
49
Joint partly dissenting opinion of Judges Nicolaou, Keller and Dedov in Navalnyy and Ofitserov v Russia,
Nos. 46632/13 and 28671 / 14, 23 February 2016.
so Helen Keller and Corina Heri, Selective Criminal Proceedings and Article 18 ECHR - the European Court of
Human Rights ' Untapped Potential to Protect Democracy, 36 HRLJ 1, 3 (2016) (footnotes omitted)).

9
 to the elements of a right to a fair trial. Further, Article 7 is not absolute - its interpretation
depends on the particular context of the case.

(i) Article 18 has broad application across the Convention rights and f reedoms

30. The Travaux Preparatoires are explicit that A1iicle 18 was a failsafe provision to prevent the
encroachment of authoritarianism. M. Teitgen, the Rapporteur to the Committee on Legal and
Administrative Questions (in 1949) specified that the object of Article 18 was to ensure that
restrictions on any rights and freedoms were imposed in the general interest and not enforced
by totalitarian regimes to tighten their grip. It is clear from M. Teitgen's proposal in the Travaux
Preparatoires that Article 18 was intended to apply to all the provisions of the Convention.
This point was explicitly confirmed by the Grand Chamber in M erabishvili:

' Article 18 does not. .. serve merely to clarify the scope of [the] restriction clauses. It
also expressly prohibits the High Contracting Parties from restricting the rights and
freedoms enslu·ined in the Convention for purposes not prescribed by the Convention
itself, and to this extent it is autonomous ... ' 51

31. Judges Nicolaou, Keller and Dedov have made the same point:

' ... the drafting history of Article 18 would indicate that its application was not intended
to be limited to those provisions of the Convention containing an explicit restriction
clause. Instead, as per its ratio conventionis, it applies to limitations on all Convention
rights, with the exception of those absolute rights that do not permit limitation and to
which it therefore cannot logically apply, for example those under Article 3' . 52

32. This broader interpretation was also emphasised by Judges Jungwiert, Nu/3berger and Potocki
in their joint concmTing opinion in Ty moshenko:

'Article 18 refers to the " restrictions permitted under this Convention to the said rights
and freedoms". Under this explicit wording, therefore, this provision not only prohibits
" misus[ing] the whole legal machinery of the respondent State ab initio" and "act[ing]
with bad faith and in blatant disregard of the Convention from the beginning to the
end" ... .but also prohibits the use of specific restrictive measures such as pre-trial
detention for improper purposes'. 53

33 . In light of the core purpose of Article 18 to protect democracy, we would emphasise that the
right to a fair trial (in respect of both criminal and civil proceedings), provides protections
which are critical to a functioning democracy. Its abuse directly challenges democratic
accountability whether, for example, by the imprisonment of political opponents or measures
asserting executive control over the judiciary.

(ii) Article 6 incorporates express and implied restrictions to the elements ofa right to a fair trial.

34. The right to a fair trial pursuant to Article 6 of the Convention is not an absolute right 54 - it
incorporates ' restrictions' to which Article 18 attaches. The right includes various elements
which are either specified in the text of Article 6 itself (for example, the right to be heard by an
independent and impartial tribunal (Article 6(1)), and the right to examine witnesses (Article

51
Merabishvili v Georgia, No. 72508/ 13, 28 November 2017, para. 288.
52
Joint partly dissenting opinion of Judges Nicolaou, Keller and Dedov in Navalnyy and Ofitserov v Russia,
Nos. 46632/ 13 and 28671/14, 23 February 2016.
53
Joint concurring opinion of Judges Jungwiert, NuBberger and Potocki in Tymoshenko v Ukraine, No.
49872/ 11, 30 April 2013.
54
Ga/gen v Germany, No. 22978/05 , 1 June 2010, para. 178.

10
 6(3)(d))) or which have been confinned by the Court's jurisprudence (for example, the right of
access to couit and the right to silence). Those elements are not ' absolute' - but are subject to
restrictions. 55 The fact that Article 6 is subject to limitations is inevitable given the nature of
the right to a fair trial, which requires an assessment of the circumstances in which a person has
been tried, in order to consider its 'fairness' - indeed, the Comt's primary task is to evaluate
the ' overall fairness ' of the proceedings. This may require other competing interests to be taken
into account, such as the rights of victims and witnesses, and for matters such as national
security and other factors reflecting the wider public interest also to be weighed up. 56
Furthermore, the text of A1ticle 6 incorporates aspects which, by their very nature, require a
qualified evaluation to be made of the full circumstances of the case - such as the right to a
hearing within a reasonable time, and the right to have adequate time and facilities for the
preparation of a defence.

35. In that way, the nature of the right to a fair trial is different to the right to libe1ty (enshrined in
Article 5) which does not require the same sort of evaluative assessment: the state of being at
libe,ty, or not, is a question of fact. In fact the so-called ' restricted' rights are conceptually
different: Article 5 sets out a series of exceptions (in A1ticle 5(l)(a)-(f)) which permit the
deprivation of liberty - in other words, it contains explicit 'restrictions' to the right to libe1ty
and is not expressly subject to the test of proportionality which is incorporated into the text of
Articles 8-11 , balancing considerations such as national security, public interest and the rights
of others. Under Article 6 it is not the right to a fair trial itself that can be restricted but rather
the constituent elements of the right that are subject to such restrictions. The Cornt, in explicitly
acknowledging that the right to a fair trial can be subject to limitations, also recognises the
fundamental democratic impo1tance of Article 6: '[h]aving regard to the place that the right to
a fair administration of justice holds in a democratic society, any measures restricting the rights
of the defence should be strictly necessary ' . 57

36. The text of Article 6(1) includes explicit restrictions to the right to a public hearing: the press
and public may be excluded from all or part of a trial, for various specified reasons. 58
Furthermore, it is clear from the Court's jurisprudence that most other elements of the right to
a fair trial are also subject to restrictions or limitations. For example:

(i) The right of access to court is subject to limitations, which must pursue a legitimate aim,
be proportionate and be sufficiently foreseeable; 59

(ii) The right of access to a lawyer may be subject to restrictions, including delays; 60

(iii) The right to be heard in person may be restricted or modified; 61

55
See, e.g. , Van Meche/en and Others v Netherlands, No. 21363/93 , 23 April 1997, para. 58.
56
The Court has recognised that there may be competing interests which serve to restrict fair trial rights - which
may require 'the interests of the defence [to be] balanced against those of witnesses or victims called upon to
testify ' (Doorson v Netherlands, No. 20524/92, 26 March 1996, para. 70). Further, in determining overall
fairness 'the weight of the public interest in the investigation and punishment of the particular offence in issue
may be taken-into consideration' (Ibrahim and Others v United Kingdom, No. 50541/08, 13 September 2016,
para. 252).
57
Van Meche/en and Others v Netherlands, No. 21363/93, 23 April 1997, para. 58.
58
Article 6(1) provides that the press and public may be excluded where it is ' in the interests of morals, public
order or national security in a democratic society, where the interests of juveniles or the protection of the private
life of the parties so require, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice'.
59
See, e.g. , Khalfaoui v France, No. 34791/97, 14 December 1999, para. 35 ; Zubac v Croatia, No. 40160/12, 5
April 2018, para. 78.
60
See, e.g. , Salduz v Turkey, No. 36391/02, 27 November 2008 , para. 55; Beuze v Belgium, No. 71409/10, 9
November 2018, paras 137-150.
61
See, e.g., Winterwe,p v Netherlands, Series A No. 33 , 24 October 1979, para. 59.

11
 (iv) The right to legal representation ofyour own choosing may be overridden where there are
relevant and sufficient grounds (Article 6(3)(c)); 62

(v) The right to free legal assistance is subject to financial eligibility and an ' interests ofjustice'
test (Article 6(3)(c)).63

(vi) The fairness of the use as evidence of information obtained in violation of Convention
rights is determined having regard to all the circumstances of the case; 64

(vii) The right to silence is not absolute: whether the drawing of adverse inferences from an
accused's silence infringes Article 6 is a matter to be determined in the light of all the
circumstances of the case; 65

(viii) The right not to incriminate oneself is limited. It is primarily concerned with respecting the
will of an accused person to remain silent - it does not extend to the use of material which
may be obtained from the accused through the use of compulsory powers but which has an
existence independent of the will of the suspect; 66

(ix) The principle of equality of arms may be restricted by 'superior national interests', 67 and
does not prevent, for example, regulating access to appellate courts; 68

(x) The right to disclosure of material evidence is not an absolute right - there may be
competing interests, including the rights of the accused, 69 as well as national security, and
the need to protect witnesses at risk of reprisals or to keep secret police methods of
investigation of crime. 70

(xi) The right to the public pronouncement ofjudgments is not absolute: 'in each case the form
of publicity to be given to the "judgment" under the domestic law of the respondent State
must be assessed in the light of the special features of the proceedings in question and by
reference to the object and purpose of Article 6 § 1'. 71 It is therefore subject to exceptions,
for example, in cases concerning the residence of children; 72

(xii) The extent of a court's duty to give reasons will vary, depending on the nature of the
decision; 73

(xiii) The non-attendance of witnesses, 74 and the reliance on anonymous witnesses, 75 may be
justifiable in certain circumstances (Article 6(3)( d)).

62
See, e.g., Croissant v Germany, No. 13611/88, 25 September 1992, para, 29; Correia de Matos v. Portugal,
No . 56402/12, 4 April 2018, para. 121.
63
See, e.g., Pakelli v Germany, No. 8398/78, 25 April 1983, para. 31.
64
See, e.g., Ga/gen v Germany, No. 22978/05, 1 June 2010, para. 165.
65
See, e.g.,John Murray v United Kingdom, No. 18731/91, 8 February 1996, para. 47.
66
See, e.g., Saunders v United Kingdom, No. 19187/91, 17 December 1996, para. 69.
67
See, e.g., Regner v Czech Republic, No. 35289/11, 19 September 2019, para. 147.
68
See, e.g., Wynen and Cenh·e hospitalier interregional Edith-Cavel! v. Belgium, No. 32576/96, 5 November
2002, para. 32.
69
See, e.g., Rook v Germany, No. 1586/15, 25 July 2019, para. 59.
70
See, e.g., Regner v Czech Republic, No. 35289/11, 19 September 2019, para. 148.
71
See, e.g., Pretto v Italy, No. 7984/77, 8 December 1983, para. 26.
72
See, e.g., Band P v United Kingdom, No. 36337/97, 24 April 2001 , para. 46.
73
See, e.g., Zoon v Netherlands, No. 29202/95, 7 December 2000, para. 50.
74
See, e.g., Al-Khawaja and Tahe1y v United Kingdom, No. 26766/05, 15 December 2011, para. 118;
Murtazaliyeva v Russia, No. 36658/05, 18 December 2018, paras. 139-168.
75
See, e.g. , Doorson v Netherlands, No. 20524/92, 26 March 1996, para. 83.

12
 37. The applicability of Article 18 to Article 6 has previously been recognised by the Corni. For
example, in both the 2013 and 2020 judgments in Khodorkovskiy and Lebedev v Russia the
Court did not question the applicability of A1iicle 18 to Articles 5, 6, 7 or 8 and went on to
consider those points on the merits. 76 In their joint partly dissenting opinion in Navalnyy and
Ofitserov v Russia, Judges Nicolaou, Keller and Dedov expressed no doubt that A1iicle 6 is
subject to restrictions:

' ... it is undeniable that this right permits limitations: the provision has inherent restrictions
according to both its very wording and the Court's case-law. Article 6 of the Convention,
like Article 5, does not enshrine an absolute right, and though neither provision textually
provides for restrictions in a separate second paragraph analogous to those contained in
Articles 8-11 of the Convention, limitations are nonetheless possible. There is therefore no
a priori reason why A1iicle 18 should apply only in conjunction with A1iicle 5 and not with
Aliicle 6. 77

(iii) Article 7 is not absolute - its interpretation depends on the particular context ofthe
case.

38. Article 7 incorporates several aspects, one of which is the principle that only the law can define
a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). However, this is not an
unqualified right. It requires the law to be adequately accessible and foreseeable - thus,
reasonable foreseeability is sufficient. 78 Furthermore, Article 7 permits the progressive
development of the criminal law through judicial law-making - it 'cannot be read as outlawing
the gradual clarification of the rules of criminal liability through judicial interpretation from
case to case, provided that the resultant development is consistent with the essence of the
offence and could reasonably be foreseen' . 79 As regards the prohibition of retrospective
criminal offences, this similarly requires an assessment as to whether a particular legal
provision was sufficiently accessible and foreseeable. 80

(c) Article 18 should be recognised as applying to the totality of the criminal justice process

39. In interpreting Article 18 in a broad and purposive way (as set out above), it should have
applicability to the full extent of criminal justice proceedings - both to the period of the
proceedings before the trial (covered by Article 5) and to the trial process itself, when Articles
6 and 7 are in issue. The right enshrined by Article 6 goes to the very heart of the criminal
justice process, and is its culmination. Article 5 addresses the preliminary measures on which
a criminal trial under Article 6 is predicated. The trial process, if unfair, can have significant
lasting damage for defendants - not only because of their conviction (and any restrictions
imposed pursuant to it, such as a ban on standing for public office), but also because of any
custodial sentence imposed (as demonstrated in the cases of I/gar Mammadov v Azerbaijan
(No.1) 81 and Rasul Jafarov v Azerbaijan 82).

76
Khodorkovskiy and Lebedev v. Russia , No. 11082/06, 25 July 2013, paras. 886-909; Khodorkovskiy and
Lebedev v. Russia (No. 2), No. 5111/07, 14 January 2020, paras. 620-623 (also as regards Article 18 with Article
4 of Protocol no. 7). See also Nastase v. Romania (dee.), No. 80563/12, 18 November 2014;.
77
Joint partly dissenting opinion of Judges Nicolaou, Keller and Dedov in Navalnyy and Ofitserov v Russia,
Nos. 46632/13 and 28671/14, 23 February 2016 (footnotes omitted). See also the joint concurring opinion of
Judges Saj6, Tsotsoria and Pinto de Albuquerque in Tchankotadze v Georgia, No. 15256/05, 21 June 2016.
78
See, e.g., Sunday Times v United Kingdom (No. 1), No. 6538/74, 26 April 1979, para. 49.
79
See, e.g., Del Rio Prada v. Spain, No. 42750/09, 21 October 2013, para 93.
80
See, e.g., Streletz, Kessler and Krenz v. Germany, No. 34044/96, 22 March 2001, para. 51.
81
No.15172/13,29May2019.
82
No. 69981/14, 17 March 2016. See also PACE Committee on Legal Affairs and Human Rights, Rapporteur
on political prisoners in Azerbaijan deplores the authorities ' failure to implement judgments of the Court, 7

13
 40. To restrict the application of Article 18 to the pre-trial period only would be to draw a wholly
artificial line, and one that the Court acknowledged in both Lutsenko 83 and Tymoshenko 84 is
difficult to draw. This point was raised by Judges Nussberger, Tsotsoria, O' Leary and Mits in
their joint concuning opinion in I/gar Mammadov v Azerbaijan (No. 2):

'If pre-trial detention is found to be abusive as it has been used for another purpose
than the one for which it has been allowed by the Convention - how then can the trial
concerning the same criminal proceedings involving the same charges stemming from
the same events be regarded differently? How can it be seen just as a violation of Article
6 of the Convention and not also as an abuse of power?
'The most obvious approach in such a situation of"continuing deficiencies" would be
to apply A1iicle 18 of the Convention in conjunction with Article 6 of the Convention
and to consider pre-trial detention and detention together as a whole'. 85

41. This illogicality has been recognised in the I/gar Mammadov group of cases, concerning
politically motivated criminal proceedings in Azerbaijan brought against politicians, civil
society activists and human rights defenders. In I/gar Mammadov v Azerbaijan, (Mammadov
(Article 46(4)) the Grand Chamber found that the authorities had been driven by improper
reasons in charging and prosecuting Mr Mammadov, and therefore a finding of a violation of
Article 18 in conjunction with Article 5 (in the first Mammadov judgment) 'vitiated any action
resulting from the imposition of the charges', including his subsequent conviction and
sentence. 86 The Court therefore agreed with the approach that had been taken by the Committee
of Ministers in supervising the implementation of the Mammadov group of cases and required
Azerbaijan to eliminate the negative consequences of the imposition of the charges which the
Court found to be abusive. 87 The Committee had called for the immediate unconditional release
of Mr Mammadov on the basis of the Comi's finding that the charges against him were
groundless and their only purpose was to punish and silence him in violation of Articles 5 and
Article 18 (the first Mammadov judgment). The Committee's approach did not change after his
conviction on the same charges and evidence in the second Mammadov judgment, in which the
Court found a violation of A1iicle 6 but not Article 18. 88 In the Mammadov group of cases, the
Committee of Ministers stipulated that 'restitutio in integrum requires the consequences of the
impugned criminal proceedings brought against the applicants to be erased as far as possible',
which meant, for each applicant, 'the reopening of the criminal proceedings, leading to his full
acquittal, with erasure of the conviction from his criminal record.' 89 Thus the Committee of
Ministers and the Grand Chamber in Mammadov (Article 46(4)) recognised that in the light of
the finding that there were no reasonable grounds for the criminal charge and that the purpose
was politically motivated in violation of Article 18, the criminal process as a whole was
illegitimate, which justified nullifying the applicants' criminal convictions (even in the absence
of a finding of a violation of Article 6). There is a clear parallel with the Court's findings in
Navalnyy and Ofitserov v Russia (paras. 115, 116). 90

42. As set out in Part 1 above, it is a classic tool of authoritarianism to silence critics by bringing
proceedings against them in which the outcome is predetermined. The Court recognised this in

January 2020, available at: http ://www.assembly.coe.int/nw/xm1/News/News-Yiew-

EN.asp?newsid=7745&lang=2&cat=5
83
Lutsenko v Ukraine, No. 6492/11, 3 July 2012, para. 108.
84
Tymoshenko v Ukraine, No. 49872/11, 30 April 2013, para. 298.
85
No. 15172/13, 22 May 2014 (paras. 3 and 4 of the joint concurring opinion).
86
No. 15172/13, 29 May 2019, para. 189.
87
No. 15172/1 3, 29 May 2019, paras 190 and 195.
88
Ilgar Mammadov v Azerbaijan (No. 2), No. 919/ 15, 16 November 2017.
89
Committee of Ministers, I/gar Mammadov v Azerbaijan, 1355th meeting (23-25 September 2019).
90
No. 46632/13 , 23 February 2016, paras 115 and 116 .

14
 Aliyev v Azerbaijan (the latest of five cases in the !!gar Mammadov group concerning Articles
5 and 18), in which it condemned the troubling pattern of retaliatory prosecutions and misuse
of criminal law. In those circumstances, where the Collli finds that criminal proceedings have
been instigated in 'bad faith' , in violation of Ariicle 18 in conjunction with Article 5, it is quite
illogical, and indeed unconscionable, not to be able to make a similar conclusion as regards the
pursuance of those proceedings in the trial process itself (where that is justified). If a defendant
is convicted as a result of politically motivated proceedings, A1iicles 6 and/or 7 alone (without
Article 18) will not fully encompass the context and circumstances of the political interference,
nor convey the extent to which the separation of powers and democratic accountability have
been undermined. In Kava/av Turkey the Collli found that Article 18 related to a 'fundamental
aspect' of the case that had not been examined under Article 5, meriting a separate finding. 91
The same approach has been followed in relation to Articles 6 and 7 in the 2020 judgment in
Khodorkovskiy and Lebedev v. Russia (No. 2). 92

(d) Article 18 should be applicable to civil proceedings (under Article 6) which are politically
motivated

43. The significance of Article 6 to a functioning democracy is not just a consequence of the
guarantees it provides against the misuse of criminal proceedings, but also of the protections it
confers on civil proceedings within its ambit, which can and do concern fundamental challenges
to democratic accountability, including to the judiciary itself. It is generally accepted that an
independent judiciary is an essential pillar of democracy. 93 This Court affirmed in Oleksandr
Volkov v Ukraine the vital role played by the independent judiciary in a democracy, and
expressed concern over the undermining impact of political interference:

' .. .the system ofjudicial discipline in Ukraine ... does not ensure siifficient separation
of the judicia,y from other branches of State power. Moreover, it do es not provide
appropriate guarantees against abuse and misuse of disciplinary measures to the
detriment ofjudicial independence, the latter being one of the most important values
underpinning the effective functioning of democracies. ' 94

91
No. 28749/18, 10 December 2019, para 198.
92
Khodorkovskiy and Lebedev v. Russia (No. 2), No. 5111 /07, 14 January 2020. As regards the applicants '
complaints under Article I 8 taken together with Articles 6, 7 and Article 4 of Protocol no. 7, 'the Court does not
consider that the applicants' complaint represents a fundamental aspect of the present case' (para. 622).
93
It is recalled that the 2017 report on the State of Democracy, Human Rights and the Rule of Law underlined
that: 'Efficient, impartial and independent judiciaries are the cornerstone of any functioning system of democratic
checks and balances. They are the means by which powerful interests are restrained, according to the laws of the
land . They guarantee that all individuals, irrespective of their backgrounds, are treated equally before those laws ... .
Despite the fact that most Council of Europe member states have adopted legislation to ensure judicial
independence and impartiality, in compliance with Council of Europe standards, problems remain in the way these
standards are applied, leaving national judiciaries open to political influence and fuelling public perceptions of
interference in the judicial process and bias among individual judges' . See: Report by the Secretary General of
the Council of Europe on the State of Democracy, Human rights and the Rule of Law, Populism - How Strong
are Europe's Checks and Balances? (127 th Session of the Committee ofMinisters, 19 May 2017). The Consultative
Council of European Judges (CCEJ) has emphasised that 'The independence of judges is not a prerogative or
privilege granted in their own interest, but in the interest of the rule oflaw and of all those who seek and expect
justice ... Thus, independence is the fundamental requirement that enables the judiciary to safeguard democracy
and human rights'. See: CCEJ Opinion I 8 (2015), The position of the judicia,y and its relation with the other
powers of state in a modern democracy, CCEJ(2015)4. In Ramos Nunes de Carvalho e Sa v. Portugal, (No.
55391 / 13, 6 November 2018) the Grand Chamber stated that 'When a member State initiates . .. disciplinary
proceedings [against judges], public confidence in the functioning and independence of the judiciary is at stake;
in a democratic State, this confidence guarantees the very existence of the rule of law' (para. 196).
94
Oleksandr Volkov v Ukraine, No. 21722/11 , 9 January 2013 , para 199.

15
 The ' battle against totalitarianism ' (or illiberalism) must encompass such deliberate abuses (arising
in the context of ' civil proceedings'). The European Commission takes such an approach:

'The Commission is determined to defend the rule of law in all our Member States as
a fimdamental principle on which our European Union is built. An independent
judicia,y is an essential precondition for membership in our Union. The EU can
therefore not accept a system which allows dismissing judges at will. Independent
courts are the basis of mutual trust between our Member States and our judicial
systems. If the Polish government goes ahead with undermining the independence of
the judiciwy and the rule of law in Poland, we will have no other choice than to trigger
Article 7 '. 95

44. Executive control of the judiciary is almost invariably an essential component of politically
motivated trials against dissidents and other critical voices, as described in Part I above. Such
interference in the independence of the judiciary can be exerted by the dismissal of judges or
through political influence over the appointment and promotion of judges (as seen by this Court
in Hungary 96 and Ukraine,97 and as is currently on-going in Poland 98 ) .

45 . The restriction of the application of Atticle 18 to Article 5 not only fails to address the ultimate
authoritarian tool of a pre-determined conviction and imprisonment, but also precludes its
application to civil proceedings, no matter how abusive or undermining of democracy they are,
as Article 5 has no bearing in such cases. Given that the purpose of Article 18 is to prevent
authoritarian abuses, it is perverse to exclude Article 18 from the domain, for example, of the
dismissal of judges and other public servants, whose role it is to uphold democratic
accountability, which may be the result of abuse of power by the state with the very aim of
curtailing that accountability.

14 January 2020

95
President Jean Claude Juncker: European Commission acts to preserve the rule of law in Poland, Press release
IP/ 17/2161, Brussels, 26 July 2017.
96
Baka v Hungary, No. 20261/12, 23 June 2016.
91
Oleksandr Volkov v Ukraine , No. 21722/11 , 9 January 2013; Denisov v Ukraine , No. 76639/11, 25 September
2018.
98
See, for example, L. Pech and S Platon, 'The beginning of the end for Poland's so-called "j udicial reforms"?
Some thoughts on the ECJ ruling in Commission v Poland (Independence of the Supreme Court case), EU Law
Analysis, 30 June 2019. Available at: http://eulawanalysis.blogspot.com/2019/06/the-beginning-of-end-for-
polands-so.html (accessed 18 December 2019).

16