Despite Legal Uncertainties, Navalny Vows to Continue Presidential Campaign, But Federal Law Not on His Side

February 10, 2017
Alexey Navalny speaking to supporters in St. Petersburg, Russia on February 5, 2017. Photo by Elena Ignatyeva/AP

LIVE UPDATES: Supporters of opposition leader Alexey Navalny have debated the Constitutional interpretation of Russian law that might allow him to run for president despite his recent criminal conviction. But federal law is not on his side.

The previous issue is here.

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Despite Legal Uncertainties, Navalny Vows to Continue Presidential Campaign, But Federal Law Not on His Side

When opposition leader Alexey Navalny was re-sentenced in the Kirovles case to a suspended term of 5 years, it was widely seen as a move by the Kremlin to keep him from challenging President Vladimir Putin in the 2018 presidential race.

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Aleksei Navalny, Viable Putin Rival, Is Barred From a Presidential Run

Since he first came to power in January 2000, Mr. Putin and his allies have gone to great lengths to silence or undermine all critical voices in Russia. It has been almost two years since the still-mysterious assassination of Boris Nemtsov, another charismatic opposition figure, on the doorstep of the Kremlin.

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Feb 10, 2017 19:14 (GMT)

Constitutional Interpretation in Navalny’s Favor

But some commentators objected that under the Constitution, technically, Navalny could run.

Translation: @catfitz Suspended punishment does not remove one from the elections.
Translation: And once again I remind everything who has raced to pen nonsense about “not having the right to be run” [citation of Constitution].

Translation: Why will Navalny’s election campaign continue? The Constitution of the Russian Federation has the answer.

Navalny himself wrote that he would continue regardless: 

Russian Constitution Routinely Violated 

If only the Russian Constitution prevailed on so many things! Such as Art. 31, on the right to peaceful assembly, or the right to freedom of the media — there are lots of rights in the Constitution that are either undone by federal law or internal ministerial instructions or simply political will. Russia is a civil-law country with very weak precedent in constitutional rulings; it is not like the common-law countries such as the US where a Supreme Court ruling becomes the law of the land.

The problem with the hopeful legal analysis of Navalny supporters is that it overlooks the power of the political decision that didn’t stop with the overturning of Navalny’s Kirovles sentence by the Russian Supreme Court (separate from the Constitutional Court)  — a startling development in itself, soon proven irrelevant as the case was re-opened at the local court — with obvious pressure from Moscow.

And in fact, the Kremlin does have law to cite to keep Navalny out of the race.

Federal Law Bars Navalny from Race 

In an angry Facebook post, Vladimir Milov, an opposition member, former deputy energy minister and president of the Institute of Energy Policy explained his realization, after some research, as to why the authorities will have legal grounds to bar Navalny from the elections.

While the Russian Constitution does state that only a person “in a place of imprisonment under a court sentence” would be barred from taking part in a campaign, the Federal Law on the Basic Guarantees of Election Rights and Rights to Take Part in Referendum of Citizens of the Russian Federation (Art. 4, point 3.2) has a list of grounds for not enjoying the right to take part in elections, in addition to the two exceptions listed in the constitution.

The federal law says those who cannot be elected include persons “sentenced to imprisonment for the commission of serious crimes, who, on the day of election have a conviction that has not been overturned of served,” as well as persons with past convictions “for a period of 10 years” from the date the sentence was overturned or served.

Thus, persons with suspended sentences cannot run in elections, according to federal election law. 

That applies to Navalny, with his new Kirovles sentence, which has not yet been overturned or served. 

The federal law thus contradicts the Constitution, and as Milov points out, no one has contested this at the Constitutional Court all these years, and an official at the legal department of the presidential administration can say the law doesn’t contradict it.

“Listen, but this has to be contested in Constitutional Court yesterday!!!”” cried Milov on Facebook, and the debate continued.

Further Arguments in Navalny’s Favor

Leonid Volkov, Navalny’s campaign manager, made much the same point in a blog post but then countered that other factors indicate Navalny could run even so.

He reminded us that Navalny has two cases hanging over his head now — the Yves Roche case under which his brother was sentenced to 3.5 years in prison and Navalny was given a suspended sentence, and the Kirovles case.
Volkov makes the point that Yves Roches does not qualify as a “serious” crime as he did not get the maximum sentence (5 years) under it. Thus, it cannot be invoked even under federal law to stop Navalny.
In Kirovles, Volkov argued that the sentence has not gone into force yet as it is being appealed. It might be overturned again, as the original sentence was, by the Supreme Court, after the European Court of Human Rights ruled that it was unfounded.
This was how Navalny was able to run in the mayoral elections in 2013– his sentence was under appeal and he was able to register and garner nearly 30% of the votes, coming close to achieving a second round. Then afterward, the authorities crackdown down on him with the confirmation of the Kirovles sentence and then other criminal cases.

So it might be, in a perfect world, either lawyers will successfully contest the unconstitutionality of the federal law, or contest Navalny’s specific sentence and get it overturned again, in time for the 2018 elections. This seems unlikely in Putin’s Russia.

How Do You Solve a Problem Like Navalny? 

There’s some opinion that Putin “doesn’t know what to do” with Navalny which is why these contradictory developments have taken place — first a Supreme Court sentence seeming to abolish the Kirovles case, then a swift “re-investigation” and re-opening — in sessions where as we could see the obvious contrived nature of the proceedings from the live feed from the courtroom.

At one point, when the prosecutor didn’t seem to have any questions for him, Navalny, a lawyer, suggested questions he might ask. The judge and prosecutors present laughed out loud, as they did at other points suggesting “telephone law,” as it was known in the Soviet era, i.e. political direction, was at work. Navalny tweeted out pages of the sentence before it was even read by the judge.

We can never know the reasoning for Putin’s political decisions because the Kremlin is a black box — even when some officials’ emails are hacked.

But what’s more likely is that Putin — who is perfectly calculating and decisive on a whole range of issues from backing separatists shelling Avdeyevka after his phone call with President Donald Trump; to ordering the bombing of Syrian targets; to not apologizing, but merely expressing “condolences” when his planes kill 3 Turkish soldiers; to remaining silent as another one of his critics, Vladimir Kara-Murza, Jr. is poisoned; to signing into law removal of some domestic violence crimes and more — is simply testing to see if there is sufficient public opinion in support of Navalny to warrant appeasement and granting the semblance of democracy.

Since the elections are a year away, Putin can draw this out and either crush Navalny early in the race or let it drag on and find whatever legal interpretation is needed to suit his purpose.  He can either discredit and demolish the opposition once again, or he can toy with them to gain the semblance of democratic legitimacy.

To see this process as “indecision” about Navalny or “conflict” among clans in the Kremlin is to ignore his treatment over the past years — frequent administrative and criminal charges to tie him up in courts and discredit him in the public eye; failure to register his party or allow him in any election so far; while allowing him just enough leeway to go on exposing various cronies of Putin’s such as Vladimir Yakovlev, the former CEO of Russian Railways, or Igor Shuvalov, vice premier — whom Putin himself needs to keep in line in his own highly selective battle against corruption.

Danger of Running a Campaign 

Navalny himself vows to ignore these developments, which he has repeatedly characterized as unjust political persecution, and has launched his campaign in St. Petersburg.

Of course, judging from the fate of past independent candidates — smears on state TV, hecklers and even physical attacks at every meeting with voters, and provocations to force criminal charges — running a campaign is risky indeed.

In last year’s local elections in the summer and parliamentary elections in September, Volkov, for example was accused of “damaging a microphone” and “obstructing the media” (a criminal code article meant to protect journalists from the government) when a LifeNews reporter came to harass him at campaign headquarters.

At one point while traveling in support of independent candidates, Navalny was surrounded by Cossacks at an airport who started a brawl by slapping a ball out of the hands of a supporter who then slugged the provocateur. Another candidate who suspected provocateurs had larded his nomination signatures with deliberate fakes tried to check them with police and wounded up charged with improper access to personal data, as did the policeman.

At any moment, some incident could be triggered that will not only discredit Navalny, it will end his suspended sentence and force him to actually serve five years.

The last opposition figure able to lead mass marches and get himself elected to local legislatures even as he sharply criticized Putin — Boris Nemtsov — was assassinated two years ago this month. A long line of such assassinations will give pause to any serious challenger to Putin’s re-election in 2018.

— Catherine A. Fitzpatrick