Judge Dedov

Mr Litvinenko, a Russian defector and dissident, was fatally poisoned with polonium 210 on 1 November 2006 in London; he died on 23 November. Two men, Dmitri Kovtun and Andrey Lugovoy likely acted as agents of the Russian state in murdering him, the court found.

In Russia, however, Mr Kovtun and Mr Lugovoy are deemed victims.

Judge Dedov, who has sat at the court since 2013, took issue with its reasoning in relation to Article 2 of the European Convention on Human Rights: the right to life.

“I am not sure that [the court’s] findings have been made beyond reasonable doubt. I found many deficiencies in the analysis by the British inquiry and by the court which raise reasonable doubts as to the involvement of the suspects in the poisoning and whether they were acting as agents of the state,” he wrote.

Of the court’s conclusion that polonium had been used, he said: “I am not sure that an international court that had no control over the investigation and inquiry can reach such firm conclusions in a situation where there was a lack of direct evidence to support the subjective intentions of the individuals concerned and thus to establish the subjective element of the crime.”

The judge detailed what would have been best practice for a spy who wanted to poison their target with polonium – hypothetically speaking – and suggested the shoddy execution of the killing implied the possibility that any third party could have carried it out.

“It would have been more prudent to keep the polonium in a container preserving it from detection at airports (this could have been a small glass jar) and to throw it into a rubbish bin on a street far away from the hotel. Rather, [the actual] facts could reasonably give rise to a theory that it could have been any third parties who were tracking the movements of the ‘suspects’ and left the contamination in every hotel rooms where they stayed, disposing of the poison in the same places and in the same manner, as a way of planting evidence against the ‘suspects’.”

He even suggested that because Mr Litvinenko made no secret of the fact that he was an intelligence agent Britain itself “could have been interested in getting rid of him”.

Speaking to Scottish Legal News, Ian Mitchell, who lived in Russia for 12 years and is the author of a forthcoming book entitled Russia and the Rule of Law, said: “First, Russians are accustomed to attacking those they disapprove of with minute legal precision and, with equally minute precision, defending anyone they approve of.”

He said that this “perverted legalism” was “inherited from centuries of administrative courts in which there was no tradition of judicial independence”.

“Guilt or innocence was – and still is in political cases – decided with reference to state ‘tasks’.”

“Judge Dedov is a citizen of Vladimir Putin’s Russian Federation,” he added.

Mr Mitchell, who is also the author of The Justice Factory: Can the Rule of Law Survive in 20th Century Scotland?, said that, as Judge Dedov is sitting in the ECtHR, he has been “forced to consider the ‘reasonable doubt’ test”.

“However, he claims to have doubts that Andrey Lugovoy, the alleged poisoner in whose hotel room traces of polonium were found, was responsible because it is possible, Judge Dedov says, that Litvinenko was in fact poisoned by British intelligence. He gives little justification for his doubts beyond saying Britain is hostile to Russia at the state level – which brings us back to point one.”

Mr Mitchell concluded: “Technically, of course, Judge Dedov may be right. Lugovoy may be innocent; Putin might have not told the FSB to rub out a spy who had defected; and Russia, as a state, may be entirely in the clear.

“But still, I prefer the old Highland saying: ‘If you fly with the crows, you’ll get shot with the crows’.”