The Simonovsky District Court ruling replacing the suspended sentence in the Yves Rocher case with a custodial sentence

II-4/8-2/21 Moscow

RULING

February 2, 2021 The Simonovsky District Court of Moscow, composed of presiding judge N.V. Repnikova, with the participation of E.S. Frolova, prosecutor of the criminal judicial department of the Moscow Prosecutor's Office, A.S. Ermolenko, head of Branch No. 15 of the Federal State Institution Criminal Executive Inspectorate of the Federal Penitentiary Service of Russia for Moscow, the convicted person A.A. Navalny, defense counsel, attorneys V.D. Kobzev, who presented attorney ID No. 6925 and warrant No. 040348, and O.O. Mikhailova, who presented attorney ID No. 10104 and warrant No. 515, with court session secretary A.V. Shchepochkina, having considered in open court the submission of the head of Branch No. 15 of the Federal State Institution Criminal Executive Inspectorate of the Federal Penitentiary Service of Russia for Moscow seeking revocation of the suspended sentence and enforcement of the punishment imposed by the court judgment in respect of the convicted person Alexei Anatolyevich Navalny, born on June 4, 1976 in the village of Butyn, Odintsovo District, Moscow Region, a citizen of the Russian Federation, with higher education, married, with a minor child born in 2008, registered in Moscow, at the address: Moscow, convicted by the judgment of the Zamoskvoretsky District Court of Moscow on December 30, 2014, as amended by the appellate ruling of the Judicial Panel for Criminal Cases of the Moscow City Court dated February 17, 2015, under Part 2 of Article 159.4 (as worded by Federal Law of the Russian Federation No. 207-FZ of November 29, 2012); Part 3 of Article 159.4 (as worded by Federal Law of the Russian Federation No. 207-FZ of November 29, 2012); paragraph “a,” Part 2 of Article 174.1 of the Criminal Code of the Russian Federation (as worded by Federal Law of the Russian Federation No. 420-FZ of November 7, 2011), and pursuant to Part 2 of Article 69 of the Criminal Code of the Russian Federation, finally sentenced to 3 years 6 months of imprisonment, suspended, with a probation period of 5 years and with the following obligations imposed on him: not to change his permanent place of residence without notifying the specialized state body supervising the correction of the convicted person, to notify the said body in advance of any change in his actual place of residence, and to report for registration in a timely manner, no fewer than twice a month,

ESTABLISHED:

2 By the judgment of the Zamoskvoretsky District Court of Moscow of December 30, 2014, as subsequently amended, A.A. Navalny was sentenced to 3 years 6 months of imprisonment, suspended, with a probation period of 5 years and with certain obligations imposed. By ruling of the Lyublinsky District Court of Moscow dated May 14, 2015, the obligation imposed by the judgment of the Zamoskvoretsky District Court of Moscow of December 30, 2014, namely to report for registration in a timely manner no fewer than twice a month, was supplemented by the obligation to report for registration on the days established by the criminal executive inspectorate. By ruling of the Simonovsky District Court of Moscow dated August 4, 2017, the probation period established by the judgment of the Zamoskvoretsky District Court of December 30, 2014, was extended by 1 year, that is, until December 30, 2020. The head of Branch No. 15 of the Federal State Institution Criminal Executive Inspectorate of the Federal Penitentiary Service of Russia for Moscow applied to the court on December 29, 2020, with a submission seeking revocation of the suspended sentence and enforcement of the punishment imposed by the court judgment in respect of A.A. Navalny, on the grounds that the latter had systematically violated the terms of serving his suspended sentence: he repeatedly failed, without valid reasons, to appear before the criminal executive inspectorate for registration on the established days, including after receiving inpatient treatment (during the period from August 20 to September 23, 2020), failed to provide the inspectorate with information about his actual whereabouts, and evaded appearing before the inspectorate, as a result of which his actual whereabouts had been unknown to the supervising authority since September 24, 2020. During repeated checks at addresses known to the criminal executive inspectorate, A.A. Navalny was absent, after which, on December 29, 2020, he was placed on the wanted list. In the submission, the head requested that the court consider revoking A.A. Navalny’s suspended sentence, as he had systematically violated the obligations imposed on him by the court and had absconded from the supervision of the specialized state body responsible for monitoring the conduct of persons given suspended sentences. At the court hearing, the head of Branch No. 15 of the Federal State Institution Criminal Executive Inspectorate of the Federal Penitentiary Service of Russia for Moscow supported the submission and asked the court to revoke the suspended sentence imposed on A.A. Navalny by the judgment of the Zamoskvoretsky District Court of Moscow of December 30, 2014, and explained that on January 17, 2021, A.A. Navalny had been detained pursuant to the order of the head of the Federal Penitentiary Service of Russia for Moscow dated December 29, 2020, and that on January 18, 2021, the Khimki City Court extended his detention for 30 days. The ruling of the Khimki City Court of January 18, 2021, 2

3 was upheld unchanged by the Judicial Panel for Criminal Cases of the Moscow Regional Court on January 28, 2021. At the court hearing, the convicted person A.A. Navalny objected to granting the submission of the head of the branch of the criminal executive inspectorate, explaining that he had not evaded fulfilling the obligations imposed on him by the court, had timely notified the inspector of his failure to appear, had not hidden from the inspectorate’s supervision, and had not appeared before the inspectorate because he was undergoing treatment in Germany. Defense attorneys O.O. Mikhailova and V.D. Kobzev also objected to granting the submission, arguing that A.A. Navalny had appeared before the inspectorate for registration in a timely manner, had not hidden from supervision, had informed it of his whereabouts, and that the probation period imposed on their client by the court judgment had expired. The defense and the convicted person drew the court’s attention to the fact that, by a judgment of the European Court of Human Rights, violations of Article 6(1) and Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms had been found in the proceedings against A.A. Navalny, and therefore the judgment of the Zamoskvoretsky District Court of Moscow was unlawful. Prosecutor E.S. Frolova supported the submission of the criminal executive inspectorate and asked the court to grant it: to revoke A.A. Navalny’s suspended sentence and send him to serve a sentence of 3 years 6 months of imprisonment in a general-regime correctional colony. Having heard the views of the parties and examined the materials submitted, the court finds the submission of the branch head to be subject to satisfaction. Pursuant to Part 3 of Article 74 of the Criminal Code of the Russian Federation, if a person given a suspended sentence, during the probation period, systematically fails to fulfill the obligations imposed on him by the court and absconds from supervision, the court, upon the submission of the body supervising his conduct, may decide to revoke the suspended sentence and enforce the punishment imposed by the court judgment. Under Part 5 of Article 190 of the Penal Enforcement Code of the Russian Federation, systematic non-fulfillment of the obligations prescribed to a person given a suspended sentence means failure to perform the required actions more than twice within one year, or prolonged (more than 30 days) non-fulfillment of the obligations imposed on him by the court. It has been established that on March 3, 2015, the convicted person A.A. Navalny was registered with Branch No. 11 of the Federal State Institution Criminal Executive Inspectorate of the Federal Penitentiary Service of Russia for Moscow, and later, due to his move to a new place of residence, on October 14, 2016, at the address: Moscow, ul. [street name omitted in the original], he was registered with Branch No. 15 of the Federal State Institution Criminal Executive Inspectorate 3

4 of the Federal Penitentiary Service of Russia for Moscow, where the procedure and conditions for serving the imposed sentence, as well as the consequences of failing to appear before the inspectorate without valid reasons, were explained to him. Despite the preventive and explanatory measures carried out with A.A. Navalny, he repeatedly failed to appear before the inspectorate for registration without valid reasons, namely: January 13, 2020; January 27, 2020; February 3, 2020; February 17, 2020; March 2, 2020; March 16, 2020; and July 6, 2020. The relevant specialized state body supervising the conduct of persons given suspended sentences issued A.A. Navalny written warnings about the possible revocation of his suspended sentence, and the procedure for serving a suspended sentence was repeatedly explained to him. Further, from August 17 to December 28, 2020, during repeated checks at the convicted person’s place of residence, A.A. Navalny was not found by the inspector. His whereabouts were also not established. It later became known that on August 20, 2020, A.A. Navalny was hospitalized at Clinical Hospital No. 1 in Omsk, where he received treatment from August 20 to August 22, 2020, and from August 22 continued inpatient treatment at the Charité clinic (Berlin, Germany). The fact that A.A. Navalny was in medical institutions during the period from August 20 to September 23, 2020, is confirmed by information provided by Omsk City Clinical Hospital No. 1 and the Charité University Medical Center (Berlin, Germany). After discharge from inpatient care, A.A. Navalny stayed at one of the hotels in Berlin, which he reported to the inspectorate two months later, that is, on November 23, 2020, while providing no official documents confirming treatment at the Charité center. Pursuant to the notice sent on October 16, 2020, requiring him to appear before the inspectorate on October 23, 2020, A.A. Navalny did not appear and did not report the reasons for his failure to appear. As stated in the submission, due to the absence of official data on A.A. Navalny’s whereabouts, the inspectorate conducted search measures in respect of the convicted person during the period from November 27, 2020, through December 28, 2020, inclusive; in particular: phone calls were made, registered letters were sent, and inspectors visited places of residence, but the measures taken did not make it possible to establish the whereabouts of the convicted person, A.A. Navalny. Accordingly, on December 29, 2020, by order of S.A. Moroz, head of the Federal Penitentiary Service of Russia for Moscow, the convicted person A.A. Navalny was placed on the wanted list. In accordance with paragraph 6 of Article 190 of the Penal Enforcement Code of the Russian Federation, a person given a suspended sentence is deemed to have absconded from the supervision of the criminal executive inspectorate 4

if his whereabouts have not been established for more than 30 days.

In view of the foregoing, having assessed the arguments presented by the parties, the court finds it established that the convicted person A.A. Navalny systematically evaded fulfilling the obligations imposed on him by the court judgment, and considers the submission of the head of Branch No. 15 of the Federal State Institution Criminal Executive Inspectorate of the Federal Penitentiary Service of Russia for Moscow to be well-founded and subject to satisfaction.

It was established at the court hearing that the purposes of punishment provided for in Part 2 of Article 43 of the Criminal Code of the Russian Federation, in light of A.A. Navalny’s attitude toward the obligations imposed on him for the probation period, cannot be achieved while maintaining his suspended sentence; therefore, on the basis of Part 3 of Article 74 of the Criminal Code of the Russian Federation, the court considers it necessary to revoke it.

The assertion by the convicted person’s defense counsel and by A.A. Navalny himself that revocation of the suspended sentence is impossible because the probation period has expired contradicts the applicable legislation, under which a decision to revoke a suspended sentence and enforce the punishment imposed by the court judgment in respect of a person given a suspended sentence who absconded from supervision during the probation period may be adopted by the court even where consideration of that issue takes place after the expiration of the established probation period; in this regard, the court takes into account that the submission seeking revocation of the suspended sentence in respect of A.A. Navalny was received by the Simonovsky District Court of Moscow on December 29, 2020, that is, before the expiration of the probation period.

The court finds unpersuasive the position of the defense and the convicted person that he did not hide from the Moscow offices of the Federal Penitentiary Service because he was receiving inpatient treatment, and then outpatient treatment and rehabilitation, having notified the inspectorate of this and indicated his actual place of residence at a hotel in Berlin, Germany, as well as their arguments regarding the failure to notify his lawyers and close relatives about the search measures, and regarding his appearances at the inspectorate on other days of the week, because it was confirmed at the court hearing that A.A. Navalny repeatedly failed, on the days established by the inspectorate in January, February, March, and July 2020, that is, before his hospitalization in August 2020, to appear before the inspectorate without valid reasons, and then, after discharge from the medical institution—the Charité clinic—on September 23, 2020, did not provide the inspectorate with information about his whereabouts, thereby violating the obligations imposed on him by the court.

The current penal enforcement legislation provides for an obligation of the specialized state body supervising the conduct of persons given suspended sentences 5

6 to notify their lawyers, close relatives, and other persons about search measures. The arguments of the defense and the convicted person that the European Court of Human Rights recognized the judgment of the Zamoskvoretsky District Court of Moscow of December 30, 2014, as unlawful cannot be taken into account, because in its judgment of October 17, 2017, the European Court of Human Rights found violations of Article 6(1) and Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms committed during the judicial proceedings, but did not state that the judgment itself was unlawful, whereas the Presidium of the Supreme Court of the Russian Federation, in its ruling of April 25, 2018, found no grounds to conclude that the court had incorrectly applied the law establishing the criminality of the act, its punishability, and other criminal-law consequences, and left unchanged the judgment of the Zamoskvoretsky District Court of Moscow and the appellate ruling of the Judicial Panel for Criminal Cases of the Moscow City Court. According to the judgment, A.A. Navalny was convicted of crimes of minor and medium gravity. Pursuant to paragraph 18 of Resolution No. 9 of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2014, “On the Practice of Designating and Changing Types of Correctional Institutions by Courts,” when revoking a suspended sentence, the court, guided by Part 4 of Article 74 of the Criminal Code of the Russian Federation, designates the type of correctional institution under the rules of Article 58 of the Criminal Code of the Russian Federation. Under paragraph “a” of Part 1 of Article 58 of the Criminal Code of the Russian Federation, persons convicted of crimes of minor and medium gravity, taking into account the circumstances of the offense and the offender’s personality, may be assigned by the court to serve their sentence in a general-regime correctional colony, with the reasons for that decision stated. In determining the type of correctional institution, the court takes into account information about the personality of the convicted person A.A. Navalny, the circumstances of the intentional crimes committed by him, their number, nature, and degree of social danger, and the specific circumstances of the case, and considers it necessary to assign A.A. Navalny to a general-regime correctional colony to serve his sentence. In accordance with Article 72 of the Criminal Code of the Russian Federation (as worded by Federal Law of the Russian Federation No. 420-FZ of December 7, 2011, in force at the time A.A. Navalny committed the crimes), the court credits the time the convicted person spent under house arrest during the period from February 28, 2014, to December 30, 2014, toward the term of imprisonment at the rate of one day of house arrest for one day of imprisonment. In connection with the revocation of the suspended sentence and the imposition of a real term of imprisonment, for the purpose of enforcing this ruling, the court considers it necessary to impose on A.A. Navalny 6

7 until this ruling enters into legal force, a preventive measure in the form of detention in custody. The court credits the time A.A. Navalny spent in custody from January 17, 2021, to February 2, 2021, toward the term of punishment to be served. At the same time, at the sentence-enforcement stage, the court does not apply to that period the multiplication coefficient provided for by paragraph “b” of Part 3.1 of Article 72 of the Criminal Code of the Russian Federation. On the basis of the foregoing and guided by Part 4 of Article 396 and Articles 397 and 399 of the Criminal Procedure Code of the Russian Federation, the court

RULED:

The submission of the head of Branch No. 15 of the Federal State Institution Criminal Executive Inspectorate of the Federal Penitentiary Service of Russia for Moscow dated December 29, 2020, seeking revocation of the suspended sentence and enforcement of the punishment imposed by the court judgment in respect of Alexei Anatolyevich Navalny, is granted. In accordance with Part 3 of Article 74 of the Criminal Code of the Russian Federation, the suspended sentence imposed by the judgment of the Zamoskvoretsky District Court of Moscow of December 30, 2014 (taking into account the amendments introduced by the Moscow City Court and the Simonovsky District Court of Moscow), is revoked. A.A. Navalny is to be sent to serve the sentence imposed by the judgment of the Zamoskvoretsky District Court of Moscow of December 30, 2014, by which he was convicted under Part 2 of Article 159.4 of the Criminal Code of the Russian Federation (as worded by Federal Law of the Russian Federation No. 207-FZ of November 29, 2012); Part 3 of Article 159.4 of the Criminal Code of the Russian Federation (as worded by Federal Law of the Russian Federation No. 207-FZ of November 29, 2012); paragraph “a” of Part 2 of Article 174.1 of the Criminal Code of the Russian Federation (as worded by Federal Law of the Russian Federation No. 420-FZ of November 7, 2011), taking into account Part 2 of Article 69 of the Criminal Code of the Russian Federation, in a general-regime correctional colony for a term of 3 (three) years 6 (six) months of imprisonment. The term of punishment to be served by A.A. Navalny shall be calculated from the day this ruling enters into legal force, with the time spent in custody from January 17, 2021, until the day this ruling enters into legal force credited toward the term of punishment. In accordance with Article 72 of the Criminal Code of the Russian Federation (as worded by Federal Law of the Russian Federation No. 420-FZ of December 7, 2011), the time A.A. Navalny spent under house arrest during the period from February 28, 2014, to December 30, 2014, shall be credited toward the term of imprisonment at the rate of one day of house arrest for one day of imprisonment. This ruling may be appealed to the Moscow City Court within 10 days from the date it is pronounced, and by the convicted person within the same period from the date he is served with a copy of the ruling. Presiding Judge: 4 CKB 1308 7