Navalny

From: “Michael Herzen” <mikeh@4herzen.net>
Subject: Navalny
Date: Wed, 25 Sep 2013

Re: JRL #145 of August 9, items 24 and 25: “ALEKSEI NAVALNY ­ AN EXAMINATION OF HIS TRIAL AND CONVICTION”, By Alexander Mercouris

Surprised and dismayed that no one has commented on this “examination”, I will have to do so myself, though I am no legal scholar.

Why this is important: Mr. Navalny, whatever his merits (or demerits), and however flawed he may be, is the principle adversary now to V.V. Putin.  The issue in Mr. Mercouris’ examination – whether the charges against him in Kirov/Vyatka were just, and whether the conviction is appropriate ­ is crucial, as this court case will be determinant in the viability of this adversary, at least in the short term.

A thorough critique of this long article is beyond my capabilities.  What follows are only a few observations, a sort of indication of how much reliability might be placed in this ­ ostensibly dispassionate ­ appraisal of the case.

First, the question of the amount of damages: 16M rubles, or 3 million?  While British law may differ, American jurisprudence would rule, contrary to Mr. Mercouris’ opinion, for 3 million.  To cite one attorney’s short answer: “In our world, the damages suffered (by the state or a private party) would be the loss, i.e., the difference between the price paid and the price that (allegedly) should have been paid.  As for a criminal defendant’s culpability, it’s the benefit to the defendant in the amount of the alleged wrongful windfall, which he’d have to disgorge.”

Second, as to the author’s appeal to the analogy of stolen jewels: “The expert’s analogy to stolen jewels and insurance is silly.  As the insurer would make abundantly clear, 13 million of the 16 million jewels remain in the owner’s possession, do not, therefore, qualify as a “loss,” and do not require compensation by insurance.  Any claim for the entire 16 million would qualify as insurance fraud.  He also mischaracterizes the underlying charge:  we don’t prosecute “for the value of the stolen [something].”  We prosecute for the theft, irrespective of the value of the thing stolen.  Only on a finding of guilt would we say, Right, so what’s the damage?  In this case­to reiterate a pretty elementary point­Navalnyi can be accountable only for the amount that, but for his crime, would have flowed to the Kirov treasury.”

Third, the author’s unfamiliarity with Russia, and even with business in general, is clear from his repeated citation of the 7% discount as somehow indicative of a dishonest practice.  A gross margin of 7% is exceedingly low in any market.  In the Russian market it is just absurd ­ no businessman could remain in business at this rate, and certainly none bent on theft would bother for this pittance.  As a former businessman there myself, I can assure you that this is just laughable, even shocking.  Why would anyone work at 7%??  What is clear: this was not motivated (solely or chiefly) by criminal intent, unless you assume that Navalny was a complete fool, and someone totally unfamiliar with how such things are done in Russia.  Given Mr. Navalny’s record, we can unambiguously rule that out.

Finally, while some might consider it admirable to venture into an unfamiliar culture and a language to make judgments on guilt or innocence, I find it fraught with pitfalls and virtually guaranteed to produce more obscurity than illumination, some of which we can see above.  In short, it is simply impossibly pretentious.

None of this should be evidence that the case against Mr. Navalny is entirely without merit.  That I cannot determine.  What should be clear though: first, the damages and consequent sentence were excessive (certainly by Western standards), and second, there is something fishy here, about the 7%, that strongly implies we are not getting the full story.  Various explanations are possible (including, yes, complete innocence) that make more sense than criminal activity.  But, that is in the realm of speculation.