Ruling of the Presidium of the Supreme Court overturning the verdict in the Kirovles case

Moscow

RULING

OF THE PRESIDIUM OF THE SUPREME COURT

OF THE RUSSIAN FEDERATION

on reopening criminal proceedings

in view of newly discovered circumstances

Case No. 155-P16

November 16, 2016

The Presidium of the Supreme Court of the Russian Federation, composed of:

presiding judge V.A. Davydov,

members of the Presidium

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V.I. Nechayev, T.A. Petrova, S.V. Rudakov,

O.M. Sviridenko, N.V. Timoshin, A.S. Kharlamov, V.V. Khomchik, -

with S.V. Kepel acting as secretary

considered the submission of V.M. Lebedev, Chairman of the Supreme Court of the Russian Federation, on reopening the criminal proceedings against A.A. Navalny and P.Yu. Ofitserov in view of newly discovered circumstances.

Under the judgment of the Leninsky District Court of Kirov dated July 18, 2013,

A. Navalny

with no prior convictions,

was convicted under Part 3 of Article 33 and Part 4 of Article 160 of the Criminal Code of the Russian Federation (as amended by Federal Law No. 26-FZ of March 7, 2011) and sentenced to 5 years’ imprisonment and a fine of 500,000 rubles, to be served in a general-regime correctional colony;

2 P. Yu. Ofitserov, with no prior convictions, was convicted under Part 5 of Article 33 and Part 4 of Article 160 of the Criminal Code of the Russian Federation (as amended by Federal Law No. 26-FZ of March 7, 2011) and sentenced to 4 years’ imprisonment and a fine of 500,000 rubles, to be served in a general-regime correctional colony. The attachment imposed on Ofitserov’s property — a 2008 vehicle “ ”, registration plate identification number (VIN) - shared ownership region, city of region, city of street building apt. 1/8 share in the right of shared ownership of an apartment located at: 1/8 share in the right to an apartment located at: street. bldg. apt. as well as the prohibition on vehicle registration actions involving the property of A.A. Navalny, 2004 model year, registration identification number (VIN) 1997 model year identification number registration plate vehicle “ registration plate (VIN) - - model year, was ordered to remain in force. In the event that P.Yu. Ofitserov lacks sufficient funds to pay the fine imposed on him, execution was ordered against the attached property. The court also determined the disposition of the physical evidence in the criminal case. By the appellate ruling of the Judicial Panel for Criminal Cases of the Kirov Regional Court dated October 16, 2013, the judgment was amended, and the sentence of imprisonment imposed on A.A. Navalny and P.Yu. Ofitserov was deemed, pursuant to Article 73 of the Criminal Code of the Russian Federation, to be suspended, with a probation period of 5 years for each, and with the following obligations imposed on each: not to change permanent residence without notifying the specialized state body supervising the conduct of conditionally sentenced persons, and to report to that body twice a month for registration. In the remaining part, the judgment with respect to A.A. Navalny and P.Yu. Ofitserov was left unchanged. In the submission of V.M. Lebedev, Chairman of the Supreme Court of the Russian Federation, the issue was raised of reopening the criminal proceedings against A.A. Navalny and P.Yu. Ofitserov in view of newly discovered circumstances. Having heard the report of N.L. Khlebnikov, judge of the Supreme Court of the Russian Federation, who set out the circumstances of the criminal case, the content of the judicial decisions, the GROUNDS for the submission, and the statement of the Deputy

11 of the Convention committed in the examination of the criminal case against Navalny and Ofitserov by the courts of the Russian Federation. The Presidium of the Supreme Court of the Russian Federation finds that the submission should be granted. In its judgment of February 23, 2016 (which became final on July 4, 2016) in the case of *Navalny and Ofitserov v. Russia*, the European Court found that there had been a violation of Article 6 § 1 of the Convention in the examination of the criminal case against Navalny and Ofitserov. The violation of the provisions of the Convention established by the European Court in the examination of the criminal case by a court of the Russian Federation constitutes, pursuant to subparagraph “b” of paragraph 2 of part 4 of Article 413 of the Code of Criminal Procedure of the Russian Federation, grounds for reopening the proceedings in this case in view of newly discovered circumstances. According to part 5 of Article 415 of the Code of Criminal Procedure of the Russian Federation, following consideration of the submission, the Presidium of the Supreme Court of the Russian Federation shall quash or amend judicial decisions in the criminal case in accordance with the judgment of the European Court. In the criminal proceedings in the present case, in the opinion of the European Court, the applicants’ right to a fair trial was violated, which indicates a violation of Article 6 § 1 of the Convention. Since the European Court established a violation of Article 6 § 1 of the Convention, the judgment and the appellate ruling in respect of Navalny and Ofitserov are subject to being quashed, and the criminal case is to be remitted for a new trial. The Presidium finds it possible not to impose any preventive measure on Navalny and Ofitserov. On the basis of the foregoing, and guided by part 5 of Article 415 of the Code of Criminal Procedure of the Russian Federation, the Presidium of the Supreme Court of the Russian Federation ruled: to reopen the proceedings in this criminal case against A. Navalny and P. Yu. Ofitserov in view of newly discovered circumstances. A The judgment of the Leninsky District Court of Kirov dated July 18, 2013, and the appellate ruling of the Judicial Panel for Criminal Cases of the Kirov

12

Regional Court dated October 16, 2013, in respect of A. Navalny and P. Yu. Ofitserov, shall be quashed, and the criminal A case shall be remitted for fresh consideration from the trial stage before the same court in a different composition.

Presiding Judge V.A. Davydov

3

Prosecutor General of the Russian Federation N.A. Vinnichenko, defense lawyers O.O. Mikhaylova, V.D. Kobzev, S.V. Davydova, and the convicted persons A.A. Navalny and P.Yu. Ofitserov, the Presidium of the Supreme Court of the Russian Federation

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established:

Navalny was convicted of organizing and directing the commission of embezzlement, that is, the theft of another person’s property entrusted to the offender, on an especially large scale; Ofitserov was convicted of aiding and abetting the commission of embezzlement, that is, the theft of another person’s property entrusted to the offender, on an especially large scale, by providing information and means for committing the crime.

The said crimes were committed under the following circumstances.

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At about the end of December 2008 - beginning of January 2009, in the building of the Government of the Kirov Region, 0 the Governor of the Kirov Region, B, at a meeting with the heads of major regional enterprises, including the general director of the Kirov Regional State Unitary Enterprise “ ”, introduced his future unpaid advisers, including Navalny, who was officially appointed to that position by Order No. 60-k of the Governor of the Kirov Region dated May 21, 2009.

In accordance with the Temporary Regulations on an unpaid adviser (assistant) to the Governor of the Kirov Region, approved by Order No. 887 of the Governor of the Kirov Region dated July 14, 2000, an unpaid adviser to the Governor, in exercising his powers, provides the Governor with advisory assistance free of charge, holds an official identification card of the prescribed form, and is also vested with authority to participate, in an advisory capacity, in working meetings under the Governor and sectoral committees of the regional administration, to cooperate with legislative and executive authorities in preparing draft regional regulations, to participate in the development of the region’s socio-economic development program, in shaping and implementing regional procurement in strategically important areas of the region’s life support, and in developing programs for the restructuring and reorganization of inefficient enterprises of various forms of ownership.

legislative and

At about January-February 2009, Navalny, knowingly aware of his ability to influence the activities of state unitary enterprises of the Kirov Region by virtue of his actual exercise of the powers of an unpaid adviser to the Governor, formed the intent to steal property belonging to the Kirov Regional State Unitary Enterprise “

Navalny, acting out of mercenary motives, as the organizer

4 of the crime, while also planning to direct its commission, together with his acquaintance Ofitserov, brought in as an accomplice to the crime, developed a plan to steal the property of the Kirov Regional State Unitary Enterprise “ ” by embezzling it for the benefit of a newly created organization under their control, which Ofitserov was to establish and head.

In accordance with Order No. 492 of the Governor of the Kirov Region dated November 12, 2007, the Kirov Regional State Institution ]” was transformed into the Kirov Regional State Unitary Enterprise, operating under the right of economic management, “ “

By Order No. 07-1588 of the Director of the Department of State Property of the Kirov Region dated December 7, 2007, and in accordance with the employment contract dated December 12, 2007, Opalev was appointed general director of the Kirov Regional State Unitary Enterprise “ ” as of December 12, 2007.

According to clause 5.2 of the Charter of the Kirov Regional State Unitary Enterprise “ ”, approved by the Director of the Department of State Property of the Kirov Region on December 6, 2007, and agreed on December 6, 2007, by the Head of the Department of Forestry of the Kirov Region, the general director of the enterprise acts on behalf of the enterprise without a power of attorney, represents its interests in good faith and reasonably within the territory of the Russian Federation and beyond, acts on the principle of sole management, and bears responsibility for the consequences of his actions in accordance with federal laws, other regulatory legal acts of the Russian Federation and the Kirov Region, the Charter, and the employment contract concluded with him.

By virtue of his official duties, employment relationship with the Department of State Property of the Kirov Region, and the enterprise’s Charter, general director O., from December 12, 2007, continuously performed organizational, managerial, and administrative-economic functions, that is, exercised management functions in the unitary enterprise, and also exercised powers of use, management, and disposal of the property of the Kirov Regional State Unitary Enterprise “ contracts were concluded-

On November 10, 2008, the Department of Forestry of the Kirov Region and the Kirov Regional State Unitary Enterprise “ ”, represented by general director O., entered into lease agreements No. 1, No. 2, and No. 3 for forest plots in federal ownership for a term of 15 years, under which the Kirov Regional State Unitary Enterprise accepted for temporary use forest plots located within the territory of the Kirov Region and held in state ownership.

In accordance with Article 606 of the Civil Code of the Russian Federation

5 the fruits, products, and income obtained by the lessee as a result of using the leased property in accordance with the agreement are his property. In addition, in 2009, the Department of Forestry of the Kirov Region and the Kirov Regional State Unitary Enterprise “ ”, represented by general director O., concluded state contracts for work on the protection, safeguarding, and regeneration of forests located on forest fund lands in state ownership, within the relevant forestry districts in the Kirov Region, not assigned to persons using the forests, with the simultaneous sale of standing timber for logging, under the terms of which the timber paid for and harvested under the said contract became the property of the Kirov Regional State Unitary Enterprise “ ”. In preparing for the planned theft, at about February 2009, Navalny, while in fact performing the above-mentioned duties of an unpaid adviser to the Governor, acting on instructions from the leadership of the Kirov Region, which was unaware of the crime being committed, together with Ofitserov, allegedly for the purpose of studying and analyzing the efficiency of the activities of the Kirov Regional State Unitary Enterprise “ ”, arrived at the said enterprise, located at: region, city of lane, building. After that, Navalny introduced Ofitserov to general director O. and instructed him to provide Ofitserov with information on the structure of the Kirov Regional State Unitary Enterprise, the range of harvested and processed timber products, as well as other necessary data, which O. did. At about February-March 2009, Navalny, continuing to implement his criminal intent aimed at stealing the property of the Kirov Regional State Unitary Enterprise “ ”, while directing the commission of the crime, being in the building of the Government of the Kirov Region, located at: bldg. informed street region, city of about the forthcoming creation by Ofitserov of an enterprise to provide intermediary services for the sale of timber products harvested and processed by the Kirov Regional State Unitary Enterprise “ ” for the purpose of subsequently embezzling the property entrusted to O. 0 realizing that, as a result of the creation of this enterprise and further work with it, the Kirov Regional State Unitary Enterprise “ ” would suffer property damage, took no action aimed at preventing Navalny’s unlawful acts and agreed to his proposal, thereby entering into a prior conspiracy with Navalny and Ofitserov to embezzle the property of the Kirov Regional State Unitary Enterprise “ ” entrusted to him (O.) on an especially large scale. In order to implement Navalny’s criminal plan, Ofitserov, acting jointly and in concert with him, in March 2009 ensured the creation and

state registration 6 within the territory of the Kirov Region of a limited liability company under his and Navalny’s control ” (hereinafter “LLC ‘ ’”), as well as the opening of a settlement account, thereby assisting in the commission of the crime by providing information and means for its commission. a

On March 18, 2009, the Inspectorate of the Federal Tax Service for the city of Kirov carried out the state registration of LLC “ ” (Taxpayer Identification Number ); its sole participant and general director was Ofitserov, who also opened, on March 25, 2009, for the LLC, a settlement account with AKB “ ” OJSC (City Additional Office), located at: region, city of street building..

At about March - the first half of April 2009, in the city of Kirov, Kirov Region, Ofitserov, carrying out the instructions of Navalny, the organizer of the crime, and continuing to aid and abet the commission of the embezzlement, arranged for the preparation of a draft supply contract with LLC “ ” that was knowingly loss-making for the Kirov Regional State Unitary Enterprise “ ”, and signed it on behalf of LLC “ ”. Under the contract, the Kirov Regional State Unitary Enterprise undertook the obligation to supply timber products exclusively at its own expense to consignees — legal entities and individuals, including those who were in fact existing purchasers of timber products from the Kirov Regional State Unitary Enterprise “ ”, and therefore the refusal to conclude direct supply contracts with them had no economic rationale and entailed causing damage to the Kirov Regional State Unitary Enterprise >>. In addition, the said contract initially lacked information on the price of the timber products that would correspond to and provide equivalent compensation from LLC “ ” for the market value of the timber products supplied by the Kirov Regional State Unitary Enterprise “ ”.

Ofitserov then passed the said contract to O. for signature, who, on April 15, 2009, in the building of the Kirov Regional State Unitary Enterprise “ ” at the address: region, city of lane, building, acting intentionally and in concert with Navalny and Ofitserov, being the general director of the Kirov Regional State Unitary Enterprise “ ” and using his official position, signed Supply Contract No. 01/2009 with LLC “ ”, providing for appendices thereto defining the main terms of the supply of timber products, including their price.

At the same time, O., having received an oral negative opinion on the said draft supply contract from employees of the Kirov Regional State Unitary Enterprise “ ” responsible for the sale of timber products, was aware of the public danger of his actions and the inevitability of socially dangerous consequences resulting from the conclusion of the supply contract with LLC “ ” in the form of embezzlement of the timber products of the Kirov Regional State Unitary Enterprise “ ” entrusted to him in favor of LLC “ ” and the causing of

7 property damage due to the absence on the part of LLC of equivalent compensation for the market value of the said timber products. According to the contract concluded with LLC , the Kirov Regional State Unitary Enterprise “ ” undertook to supply timber products to the consignees specified in the appendices to that contract, and LLC “ ” was to pay for those goods. At the same time, Navalny, O., and Ofitserov knew full well that LLC << ” would pay for the goods on the terms established by the contract and its appendices at a knowingly reduced price, compared with the price that the Kirov Regional State Unitary Enterprise “ ” could have obtained from buyers without using the intermediary services of LLC , and that the said contract was aimed solely at creating the appearance that the Kirov Regional State Unitary Enterprise “ ” had civil-law obligations to LLC “ ” allegedly to transfer timber products to consignees for consideration, whereas in reality those goods would be transferred without equivalent corresponding compensation from LLC “ ”. And in execution of the joint criminal intent, using his official position, 1”, as well as the general director During the period from April 15 to July 13, 2009, in the city of O., general director of the Kirov Regional State Unitary Enterprise “ ”, and LLC Ofitserov, acting intentionally and in concert as accomplices with Navalny, who organized the commission of the said crime and directed its execution, signed 36 appendices to Supply Contract No. 01/2009 of April 15, 2009, which specified the names of the timber products, the volumes and terms of supply, and also the price, which, without any economic necessity, was deliberately understated by all participants in the crime compared with the price at which the products of the Kirov Regional State Unitary Enterprise could have been sold directly to the counterparties of LLC. For his part, during the above period, Ofitserov, acting on behalf of LLC, concluded supply contracts with buyers for timber products produced by the Kirov Regional State Unitary Enterprise. In order to increase the volume of the property of the Kirov Regional State Unitary Enterprise subject to embezzlement, and also to create for LLC conditions enabling it alone to supply and sell the timber products produced by the Kirov Regional State Unitary Enterprise “ ”, O., acting on Navalny’s instructions, intentionally and in concert with him and Ofitserov, using his official position, issued Director’s Order No. 76 of May 19, 2009, “On Establishing the Procedure for the Sale of Timber Products by the Kirov Regional State Unitary Enterprise ‘ ’,” which prohibited the forestry branch units of the Kirov Regional State Unitary Enterprise “ ” from independently concluding supply and

8 sale contracts for timber products with legal entities, individuals, and sole proprietors. At the same time, Navalny and Ofitserov understood that O., by unlawfully depriving the Kirov Regional State Unitary Enterprise of the possibility of independently selling the timber products it produced at market prices, was thereby placing those timber products at the disposal of LLC without appropriate and equivalent compensation for their market value. 0 with During the period from April 15 to September 30, 2009, in the city of using his official position, and Ofitserov, acting intentionally and in concert with Navalny and on his instructions, ensured the performance of the terms of Supply Contract No. 01/2009 of April 15, 2009, and its appendices, as a result of which the Kirov Regional State Unitary Enterprise shipped timber products worth 16,165,826.65 rubles to the following counterparties of LLC “ ”: - OJSC “ ”, with delivery address: - LLC “ ”, at the address: - LLC << ”, at the address: city of - OJSC at the address: city of , street - OJSC at the address: - LLC < at the address: city of - OJSC << street shipped in the volume of 1,966.65 cubic meters, with delivery location at: region, settlement street building]; in the volume of 62.972 cubic meters, with delivery location at: region, city of delivery address: - LLC h, street. city” in the volume of 988.66 cubic meters, with delivery location at street. bldg. > in the volume of 796.754 cubic meters, with delivery location at building. > in the volume of 3,068.29 cubic meters, with delivery location at region, city of street. building. > in the volume of 698.35 cubic meters, with delivery location at at the address: Republic of ” in the volume of 310.20 cubic meters, with delivery location at region, city of street , building. in the volume of 59.90 cubic meters, with delivery location at city of street in the volume of 221.351 cubic meters, with delivery location at - sole proprietor at the address: street. territory, city of settlement

- OJSC << 9 Pulp and Paper Mill” in the volume of 771.44 cubic meters, with delivery address: Republic of CJSC “ delivery address: - LLC “ city of street. building. ” in the volume of 265.42 cubic meters, with delivery location at region, city of with delivery address: village of - LLC << street. delivery address: Republic of - LLC < delivery address: - CJSC delivery address: - 300 building.; street. building. ” in the volume of 176.36 cubic meters region, district, in the volume of 288.94 cubic meters, with delivery location at city of street building. in the volume of 161.190 cubic meters, with delivery location at territory, city of street. bldg. ” in the volume of 132.080 cubic meters, with delivery location at region, city of square. building d.0.0.) in the volume of 115.72 cubic meters, with street delivery address: Republic of city of As a result, the total volume of timber products supplied by the Kirov Regional State Unitary Enterprise to the counterparties of LLC “VLK” amounted to 10,084.277 cubic meters. During the period from April 15 to December 2009, for the said volume of timber products, funds in the total amount of 16,003,880.28 rubles were received into the settlement account of LLC << under the control of Navalny and Ofitserov, with AKB “ ” OJSC (City Additional Office), located at: No. street region, city of namely: from the settlement account of OJSC “ ” opened with AKB “ ” OJSC, funds were received in the total amount of 3,755,494.50 rubles; - from the settlement account of LLC “ ” in the amount of 40,950 rubles; - - - from the settlement account of LLC from the settlement account of OJSC “ from the settlement account of OJSC “ from the settlement account of LLC “ for OJSC “ > in the amount of 3,136,904.5 rubles; ” in the amount of 100,000 rubles; in the amount of 1,525,166.08 rubles; in the amount of 1,325,919.75 rubles; > in the amount of 2,507,239.75 rubles;

10 - from the settlement account of LLC “ - from the settlement account of sole proprietor - - from the settlement account of OJSC - from the settlement account of CJSC “ • in the amount of 99,669.70 rubles; in the amount of 1,151,025.20 rubles; > in the amount of 545,783.20 rubles; ” in the amount of 200,093.0 rubles; > in the amount of 291,357.0 - from the settlement account of LLC “ rubles; - from the settlement account of LLC “ ” in the amount of 282,686 rubles; - from the settlement account of LLC “ in the amount of 513,486.0 rubles; - - from the settlement account of CJSC “ > in the amount of 177,945.60 rubles; in the amount of 350,160 rubles. - from the settlement account of 300 Thus, O., acting jointly with Navalny, who organized and directed the commission of the crime, and Ofitserov, using his official position as general director of the Kirov Regional State Unitary Enterprise “ ”, out of mercenary motives unlawfully embezzled property belonging to another and under his control, namely timber products of the Kirov Regional State Unitary Enterprise “ ” in the volume of 10,084.277 cubic meters worth 16,165,826.65 rubles, that is, on an especially large scale, for the benefit of third parties — accomplices in the crime and the LLC under their control “, thereby causing property damage to the owner of that property — the Kirov Regional State Unitary Enterprise “ ”. It follows from the judgment of the Leninsky District Court of Kirov dated December 24, 2012, that O. was found guilty of embezzlement, that is, the theft of the property of the Kirov Regional State Unitary Enterprise “ ”, entrusted to O., using his official position, on an especially large scale, committed jointly with N. and O., that is, of committing the crime provided for in Part 4 of Article 160 of the Criminal Code of the Russian Federation. In their applications to the European Court of Human Rights (hereinafter, the European Court), Navalny and Ofitserov stated, in particular, that the trial had been conducted in violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, the Convention), and that the court’s judgment was based on an “incorrect application of criminal law.” In the submission of V.M. Lebedev, Chairman of the Supreme Court of the Russian Federation, the issue was raised of reopening the criminal proceedings in connection with the European Court’s finding of violations of the provisions of