Karinna Moskalenko on the Complexities of Article 18

Karinna Moskalenko, 05/06/12

Source: HRO.org

· European Court of Human Rights  · The Courts  · Human rights defenders  · Yukos case

Khodorkovsky's lawyer Karinna Moskalenko has commented on Putin's recent statements: "This is a fairly crude and inexpert piece of speculative propaganda aimed at the uninformed."

President Vladimir Putin: "It is well known that the European Court of Human Rights has placed on record the fact that there were no political motives behind the criminal case or the verdict against Mr. Khodorkovsky."

When I hear these sorts of statements, I ask myself - how can it be possible to distort things in such a shabby way? This is a fairly crude and inexpert piece of speculative propaganda aimed at the uninformed.

Firstly, the European Court did not assess either the criminal case or the verdict, and the Court is not going to assess the verdict because this is a matter that is outside of its jurisdiction.

Secondly, the European Court does not resolve political questions. It is for Amnesty International or Human Rights Watch and other international and national human rights organisations to assess political motivation.

The European Court has so far only examined one complaint regarding the Khodorkovsky case - and acknowledged all the rights violations claimed by Khodorkovsky under it: from his unlawful arrest and groundless detention to the violation of his right not to be treated inhumanely.

A question concerning Article 18 of the Convention was indeed raised but the legal toadies who are trying to win Putin’s favour have either deliberately or out of stupidity interpreted it incorrectly, thus landing their boss in a foolish position.

In the first place, it needs to be explained exactly what Article 18 is. Article 18 does not contain a single word about politics, it is a specific norm of the Convention, which talks about the inappropriate application of legal restrictions. And only once has it been established that there was a violation of Article 18 - in the Gusinsky case where everything was just too obvious: he was imprisoned – they got his signature - he was released... This is indeed such an extremely rare situation, where the authorities acted so brazenly and so openly that it was possible to catch them red handed... After that they stopped acting in such a forthright manner - and therein lies the whole difference.

This area is not very clear even to the lawyers, which is why the authorities have been able to speculate with it. They have been very quiet about the fact that Khodorkovsky's rights were roundly violated, and the European Court, having acknowledged all the counts of violations under Khodorkovsky's first complaint, really did abstain from making any political assessment under Article 18, which is totally logical, especially with regard to Khodorkovsky's first application of February 2004, which pertains to the issues of his pre-trial detention.

A ruling in relation to Khodorkovsky’s second application, which was submitted after the first verdict, will shortly be forthcoming, - and could it be possible that it is this verdict that Mr. Putin has in mind? But again no-one is going to assess the verdict here: all that the European Court is able to acknowledge is whether the right to a fair trial was breached or not. If this right was breached, then Russia is OBLIGED to review the case - and this is indeed the result we are looking for! We will wait and see...