What is the expertise of political motives of criminal prosecution and why is it needed

An expert opinion on the political motives of a criminal prosecution is a text containing a well-grounded expert opinion on the presence or absence of political motives in the criminal prosecution of a specific person or group of persons. Such motives are possible regardless of the article of the Criminal Code under which the person is accused. You can be accused of fraud, bribery, participation in an illegal armed group. If the authorities persecute you for political reasons, they will invent a crime and falsify the materials of the criminal case. Political motives are the desire of people in power to maintain or strengthen their power. For political reasons, in Russia and other authoritarian and totalitarian regimes, not only opposition politicians are increasingly persecuted, but also human rights defenders, entrepreneurs and officials.

Why is detailed and convincing due diligence important? In 2011, the European Court of Human Rights ruled in the case of Mikhail Khodorkovsky. The court found many irregularities on the part of the Russian authorities, but not political motives for the persecution.

The ECHR ruled that “while Mr Khodorkovsky’s case might raise some suspicion as to what the real intent of the Russian authorities might have been for prosecuting him, claims of political motivation behind prosecution required incontestable proof, which had not been presented”. Indeed, you need to be able to professionally prove the existence of political motives.

Two global trends are important for our topic.

First, authoritarian and dictatorial regimes like to pretend that they do not support their power, but persecute criminals. Therefore, such regimes blame their opponents for ordinary criminal cases. Sometimes random people fall victim to such accusations. They are sent to prison to heighten fear in society. Let me explain this manipulation of the authorities using a close and modern example of Belarus. When participants in peaceful protest actions are detained and convicted for participating in these actions, no questions arise. Everyone understands that these people are being persecuted for political reasons. But one of the presidential candidates in Belarus was detained two months before the start of mass protests for alleged economic crimes. Are there political motives in the criminal prosecution of banker Viktor Babariko? This needs to be investigated and proven.

Second, dictators and heads of authoritarian regimes are increasingly using international mechanisms and institutions. For example, Interpol or international treaties. Oppositionists, human rights activists or businessmen who fled abroad from repression are put on the international wanted list. The countries from which they fled are demanding their extradition. Prosecutors of dictatorial and authoritarian regimes in their requests for the extradition of “criminals” assure that in case of extradition, these people will be guaranteed full respect for their rights: they will not be tortured, they will be provided with medical assistance in case of illness, and even provided in prison at least 3 square meters of living space. Usually such assurances are false. But this deception must be convincingly confirmed.

Another important point. In both democracy and dictatorship, there are real criminals who flee abroad. The extradition mechanism is also applied to such people. What awaits a person returning home in each specific case, will his rights be ensured? For example, the right to life? The right not to be tortured? Yes, criminals have rights too. The problem is that not every political regime agrees with this.

Now let’s imagine a judge in some European country, the United States of America or Israel, who needs to make a decision at the request of the Prosecutor General’s Office of the Russian Federation to extradite a Russian. What does this typical judge know about the motives and methods of persecuting the opposition in Russia? What does he know about Russian pre-trial detention centers and correctional colonies, about the quality of prison medicine in the Russian Federation? What does he know about how political motives for persecution might manifest in this particular case? Nothing or almost nothing. On the one hand, he sees a request from the Prosecutor General’s Office of Russia with assurances that the Russian Federation is a rule-of-law state. On the other hand, he sees the objections of a local lawyer, who is also poorly versed in Russian realities. For a judge, both the prosecutor and the lawyer are interested parties. In this situation, an external independent examination of the motives of the criminal prosecution may become a decisive factor.

After emigrating from Russia to Ukraine since 2015, I took an active part in the preparation of political expert opinions at the request of lawyers from European countries, the USA, Ukraine, Russia and Israel. Such expertise is usually required when considering asylum and extradition issues. This expertise requires special knowledge.

This knowledge of two closely related types:

1. On the presence of political motives for the criminal prosecution of people by the Russian state.

2. On the presence of political motives for extradition requests, the likelihood of torture or ill-treatment in cases of extradition of Russian citizens.

The first expert examination in 2015 was initiated by Russian lawyers. Very often, both in cases in Russian courts and in extradition cases, a lawyer realizes that there are political motives in the case and a violation of the client’s rights. But this must be convincingly and objectively proved. Such proof requires expert experience. In other words, the expert himself must have experience in human rights work in Russia, work in one of the public observation commissions to monitor the observance of the rights of detainees and prisoners, and participate in public control over the activities of Russian law enforcement agencies.

In Ukraine, European countries, the United States and Israel, there are a lot of citizens of the Russian Federation, including entrepreneurs, whose property was illegally taken away either by the Russian state or its “siloviki” – employees of the Federal Security Service, judges, policemen. Migration officials and judges in Europe and the United States often genuinely fail to understand how the Russian authorities can afford politically motivated persecution and what the motives for such persecution might be. Moreover, they do not understand how a judge can convict an innocent in order not to lose his position (courts in Russia are controlled by the Federal Security Service).

The expert opinions differ from the letters of support persecuted by some Russian human rights organizations. Support letters from human rights organizations simply state that the person is being persecuted for political reasons. Nobody substantiates this opinion in the text of the letter of support. I show what these motives are in each specific case, as well as the likelihood of human rights violations in the event of his extradition to the Russian Federation.

I have developed a methodology for such an examination and I am regularly improving it. After six years of experience, I can say that I have tested this technique enough and it works. It is difficult to judge what role the expert opinions played in each case. Much depends on the country in which the asylum or extradition case is being considered, even on the European continent. More precisely, on the quality of its legal institutions. Bosnia or Cyprus are still very different from Germany… The statistics I keep show the following: in four out of five cases in which lawyers used my expertise, the case ended in the client’s favor.

More and more people are fleeing Russia. Some of them are literally fleeing from the persecution of the Russian regime. However, it’s not just the Russians. The citizens of Belarus, Azerbaijan, Kazakhstan and the dictatorships of Central Asia from the former Soviet republics have the same, but even more complex problems.

What is the procedure for preparing an expert opinion? A lawyer turns to me and formulates the questions to which I must answer. We discuss and determine the cost of my work, as well as its timing. The amount of my fee depends on the complexity and the number of questions. Then the lawyer gives me access to the materials of his client’s case, and after a few weeks I provide him with an expert opinion.

I make my expert opinion in Russian. After receiving this document, the lawyer orders the translation of the expert opinion into the state language.

Mikhail Savva, Doctor of Political Sciences, Professor, Chairman of the Board of the OWL Expert Group (Ukraine).