The film “The Prestige” teaches us that there are three acts to every illusion. The first is the setup, when the audience is shown an ordinary object and situation (which, in fact, is not so ordinary). The second is the performance, when the illusionist manipulates the supposedly regular object in various ways. The third is the prestige, the effect.
Summing up the results of the public investigation into the Litvinenko case, Inquiry Chairman Sir Robert Owen made special mention of former Oxford University professor Robert Service, who was “a most impressive and helpful witness”.
Apart from sharing his knowledge of issues tied exclusively to Russian history and politics, the professor also gave advice related to the case overall: “We have to be really cautious … Russians want to see us fairly going through evidence in a scholarly environment or a judicial environment or an Inquiry like this in a fashion that they know doesn’t happen in their own country. So we must not sink at all below our conventional standards… we must not give them the opportunity to say that we failed to respect our own standards.”
He then clarified his point, adding that he meant ordinary citizens above all and the government only secondarily.
Praemonitus praemunitus. The report, which is the result of a public investigation into the Alexander Litvinenko case, was published by Judge Robert Owen on 21 January. As to be expected, it produced a commotive official reaction in the UK. “The report confirms what we always believed to be the case,” said British Prime Minister David Cameron. Influential member of the oppositional Labour Party Andy Burnham described it as “one of the most shocking and disturbing reports ever presented to this parliament”.
At the same time, as Professor Service predicted, the report attracted enormous attention among politically active members of Russian society – and many of them were thrilled. The opposition political figure Alexei Navalny called it “highly sensational”. In the words of Ekho Moskvy commentator Yulia Latynina, it is a “fabulous text”, “a long, coherent narrative of how everything played out”. “The text is written in excellent, clear, informal English. You’ll be transfixed,” wrote political scientist Catherine Schulmann on Facebook.
In turn, Russian Ministry of Foreign Affairs spokesperson Maria Zakharova called the investigation a “politicised farce” and “shadow pantomime”. She accused London of using legal mechanisms for achieving political ends.
However, “politicisation” is a very vague and difficult to prove accusation. It is usually confirmed by an expert evaluation. A journalist asks a political analyst or politician what he thinks about one process or another. “Of course, it is politicised,” he answers, often guided more by intuition than knowledge.
This is also the case with Maria Zakharova’s argumentation. She called the investigation politicised, but she undoubtedly has yet to analyse it and could not likely point out the corresponding indications.
We have decided to bridge this gap and take it upon ourselves to scrutinise both the report and the inquiry itself, how it was conducted. We are of the position that politicisation, if such takes place, appears not in the distortion of facts but in their interpretation, in conjectures and assumptions, as well as in the particularities of the procedure.
In Anglo-Saxon law there are two main standards of proof. In civil proceedings this is the balance of probabilities, which consists of choosing the most likely version from among those proposed. The task of the court is just that – to decide what is most probable. In contrast to civil proceedings, in criminal proceedings the principle of “beyond reasonable doubt” prevails. In other words, all conclusions must be proven and doubts dispelled or recognised as groundless.
In the Litvinenko case, Sir Robert Owen was guided by the principle for civil proceedings (of which he speaks in point 121 of the Appendix 1). He did not set before himself the goal of establishing all facts with absolute certainty, as the simpler criterion was selected from the outset. Catherine Schulmann called this the “tradition of catechesis, where the author poses himself a question and then proceeds to answer it”. It should be noted that such an approach is fairly usual for public inquiries, and it is not remarkable in and of itself.
These nuances with regard to court proceedings are important in order to understand, in particular, the judge’s following comments: “where in this Report I state that ‘I am sure’ I will have found a fact to the criminal standard. When I use such expressions as ‘I find’ or ‘I am satisfied’ the standard of proof will have been the ordinary civil standard of proof, namely the balance of probabilities… All other expressions, such as reference to a state of affairs being ‘possible’ will not be a finding of fact, but will indicate my state of mind,” he writes in point 2.20 of the Introduction.
These nuances are also important for understanding the principles governing how the conclusions contained in the report were formed. Sir Robert Owen bases his approach above all on probabilities, thanks to which he has great freedom for employing his faculty of reason and presenting his own opinions. This would perhaps be less alarming if it were not for the obvious presence of his prejudices.
The recognition made by the chairman of the inquiry in the beginning of the report can be considered just such a prejudice. “It has always been my view that the question of possible Russian State responsibility for Mr Litvinenko’s death is one of the most important issues arising from his death,” he writes in point 2.6 of the Introduction.
All of his words and actions can be explained with this exact attitude. First, as coroner of the inquest, he insisted on starting a public inquiry in order to gain access to the government’s secret documents supposedly confirming Russia’s direct involvement in the crime. Then, he repeatedly insisted on keeping the question of Russia’s responsibility on the list of issues that the inquiry must answer. However, in the conclusions he cites only “open” evidence as the source for “a strong circumstantial case” when speaking of its responsibility (point 9.187), in doing so letting the interested public judge for itself as to the cogency of his arguments.
It is necessary to understand here that, Russia’s responsibility would flow, first of all, from the conception of “agent of the state”, which means that the state bears responsibility for it’s representative’s actions; secondly, from the presumption that this type of operation, if truly planned within the state structures, would have to have been sanctioned at a high level; and thirdly, from Alexander Litvinenko’s own testimony before his death.
In the Litvinenko case, the agents of the state are named as Andrei Lugovoi and Dmitry Kovtun. Therefore, in order to demonstrate Russia’s culpability, the inquiry had to first establish what kind of relationship both suspects had with Russian intelligence services.
The facts of their secret cooperation were not established by the inquiry. The witnesses interviewed by the judge only presumed there was such a tie, not providing any real evidence for it, operating on conjecture. That is why the grounds for the conclusions about there being such cooperation were (chapter 9) as follows: 1) both suspects having previously served in the military and the proverb “There’s no such thing as an ex-KGB agent”; 2) assumptions about the source of their business; and 3) a general history of disputes between Litvinenko and the Russian government.
Likewise, there are no facts or reliable evidence to indicate that the operation was indeed planned, or in some way co-ordinated, by state structures.
In view of the above, the final thesis that former FSB director Nikolai Patrushev and Russian president Vladimir Putin were involved in the crime loses its meaning – not only with regard to personal involvement but as state institutions.
Unfortunately, neither Alexei Navalny, nor Leonid Storch, nor Catherine Schulmann, nor other Russian lawyers and political scientists who have written about the outcome of the report have attempted to translate the word “probable” in it or to analyse the role of Russia’s leadership – either not reading the text in full, or not giving it due attention, or knowingly twisting the meaning. But the same can be said of the British commentators.
The conservatism of the English does not show up just in daily life. Tradition plays a role in politics and court proceedings too. It is no wonder that English law is based on precedent. The general principles for conducting public inquiries are not unique but remain the same year after year, for many decades. The details may vary within them but continuity is preserved in any case.
When speaking of the Litvinenko case, it is necessary to understand that the inquest and the public inquiry were both conducted by the very same rules that governed similar processes in the past. And in the text itself, where the principles of the work are written about, are found references to the examples set by predecessors.
The question thus arises as to what degree the public inquiry into the Alexander Litvinenko case differs from others. Moreover, the important thing is not to find an analogous example but ascertain the general approach. What can an analysis of the past fifteen years show us?
First of all, the report for every inquiry is initially sent to the government and only afterwards disseminated publically. The interest of the executive branch also dictates the need for recommendations, which each inquiry puts forward. In the Litvinenko case, however, no recommendations were made. The report ends with general conclusions. This is especially strange given that during the investigation there was a version that the British intelligence services did not pay the necessary attention and failed to prevent the murder. Afterwards, it was excluded due to insufficient grounds.
Secondly, it is not difficult to refer to instances of public inquiries related to international incidents. This is the Al-Sweady case (2005), Baha Mousa (2005) and the ongoing investigation on Iraq. The first two concern British soldiers’ murdering of Iraqi civilians and treating them poorly. The third concerns circumstances surrounding decisions about initiating and prosecuting the war in Iraq.
Each of these investigations touch only on the circumstances of the crimes. Not in a single one of them is the question of the responsibility of the British government or individual ministers raised (despite the fact that the concerned parties, as in the Litvinenko case, insisted on it). Even though, there was no doubt that the soldiers were representatives of the British state.
In the history of public inquiries in Great Britain, however, there have been instances where the issue of the responsibility of the government was reviewed. The largest-scale case may be considered to be the inquiry into the circumstances of the shooting into a peaceful demonstration by soldiers in Northern Ireland in 1972 (Bloody Sunday). The final results of the report were announced only in 2010. The inquiry did not find any grounds to speak of the responsibility of the governments of the UK and Northern Ireland.
Professor Robert Service knew that the report on the Litvinenko affair would hardly remain unnoticed. And he was correct. However, we are not hunting for the perpetrators in the Litvinenko case and we are not vindicating anyone. We are pointing out the deficiencies Professor Service feared and which Sir Robert could not avoid.
P.S. This article is intended for open discussion, and we will be grateful for additional information or clarifications that the reader sees fit to bring forward.