Court ruling on the appeal against the refusal to open a criminal case over the 2020 poisoning

Judge A.V. Karpov APPELLATE Tomsk COPY 1 Case No. 22-1445/2021 RULING June 28, 2021 The Tomsk Regional Court, composed of Presiding Judge V.V. Polyakov, with T.M. Davydova, assistant to the judge, acting as court secretary, and with the participation of Tomsk Transport Prosecutor V.P. Detkov, considered in open court the case materials on the appeal filed by applicant V.I. Gimadi (acting in the interests of A.A. Navalny) against the ruling of the Kirovsky District Court of Tomsk dated April 29, 2021, by which the complaint of applicant Vyacheslav Ilyich Gimadi (acting in the interests of A.A. Navalny), submitted pursuant to Article 125 of the Russian Criminal Procedure Code, against the decision of the investigator of the Investigative Division of the Tomsk Linear Department of the Russian Ministry of Internal Affairs dated February 10, 2021 refusing to initiate a criminal case, was denied.

Having examined the case materials and heard the opinion of Tomsk Transport Prosecutor V.P. Detkov, who considered that the judicial decision should not be reversed or amended, the appellate courtESTABLISHED:

Applicant V.I. Gimadi filed a complaint with the Kirovsky District Court of Tomsk pursuant to Article 125 of the Russian Criminal Procedure Code, in which he asked the court to declare unlawful the February 10, 2021 decision of investigator E.A. Bolshanina of the Investigative Division of the Tomsk Linear Department of the Russian Ministry of Internal Affairs for Transport refusing to initiate a criminal case. He asked the court to order the investigator to remedy the violations of A.A. Navalny's rights, to carry out an inquiry in accordance with Article 144 of the Russian Criminal Procedure Code, and to initiate a criminal case on the basis of the material registered in the crime report log (KUSP) of the Tomsk Linear Department of the Russian Ministry of Internal Affairs under No. 679 dated August 20, 2020. By ruling of the Kirovsky District Court of Tomsk dated April 29, 2021, that complaint was denied.

In his appeal, V.I. Gimadi, expressing disagreement with the court's ruling, considers it unlawful and unfounded. He states that the poisoning of his principal by a toxin constituting a military-grade chemical warfare agent was confirmed by independent laboratories in France and Sweden. On 02.06.2020, the German government announced that toxicological analysis had produced irrefutable evidence that his principal had been poisoned with a nerve agent from the "Novichok" group. Referring to an investigation by an international investigative group, he notes that from the beginning of 2017 his principal had been under surveillance by FSB officers (Russia's Federal Security Service) specializing in toxic chemical agents, and that all information about telephone calls and movements was available from billing records, airline tickets, and phone geolocation data. He further states that an audio recording of a telephone conversation between his principal and an FSB officer was posted on the Internet, in which the officer explained that he had twice traveled to Omsk on official business for the purpose of eliminating traces of poisonous substances applied

to clothing. Thus, in the appellant's view, the entire chain from the production to the use of the poisonous substance had been established. He believes that the nature and degree of the poisoning, the actions of the officials involved, and the health consequences all indicate an intent to cause his principal's death. He states that the investigator failed to act in investigating the circumstances of the poisoning and identifying the persons involved. The crime reports submitted under Articles 105 and 277 of the Russian Criminal Code are, in practice, not being considered, and no decisions have been issued on them, contrary to Articles 144 and 145 of the Russian Criminal Procedure Code, while the investigator refused to initiate a criminal case under Part 1 of Article 111 of the Russian Criminal Code. No legal assessment was given to officially published information concerning the testing of his principal's samples in laboratories accredited by the Organisation for the Prohibition of Chemical Weapons, which indicated the elements of a crime. He believes that the investigator thereby caused undue delay, as a result of which his principal cannot be recognized as a victim and exercise the corresponding procedural rights, or rely on effective legal remedies and protection from crime. In the appellant's view, the court's reference to the investigator's arguments concerning correspondence between other persons and state authorities is unfounded, since that correspondence was never communicated or delivered to the applicant. He asks that the ruling of the Kirovsky District Court dated April 29, 2021 be set aside, and that the investigator of the Investigative Division of the Tomsk Linear Department of the Russian Ministry of Internal Affairs for Transport be ordered to conduct an inquiry pursuant to Article 144 of the Russian Criminal Procedure Code and initiate a criminal case.

Having reviewed the submitted case materials and considered the arguments of the appeal and the objections to it raised by Tomsk Transport Prosecutor V.P. Detkov, the appellate court finds no grounds to reverse or amend the court's ruling.

No violations of criminal procedure law that would require reversal or amendment of the challenged ruling were committed by the court of first instance in its consideration of the case.

Under Article 125 of the Russian Criminal Procedure Code, decisions of an inquiry officer, investigator, or prosecutor refusing to initiate a criminal case, terminating a criminal case, as well as their other decisions and actions (or failures to act) that may harm the constitutional rights and freedoms of participants in criminal proceedings or impede citizens' access to justice, may be appealed to the district court at the place where the preliminary investigation is being conducted.

Pursuant to Part 3 of Article 125 of the Russian Criminal Procedure Code, upon receipt of a complaint, the judge reviews the lawfulness and reasonableness of the actions (or inaction) of the inquiry officer and the decisions of the inquiry officer, investigator, head of the investigative body, and prosecutor.

In accordance with paragraph 14 of Resolution No. 1 of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2009, "On the Practice of Court Review of Complaints under Article 125 of the Russian Criminal Procedure Code" (as amended on November 29, 2016), when reviewing the lawfulness and reasonableness of a decision refusing to initiate a criminal case (Part 1 of Article 148 of the Russian Criminal Procedure Code), the judge must determine whether the rules governing the procedure for

reviewing a report of a committed or planned crime (Articles 20, 144, 145, and 151 of the Russian Criminal Procedure Code) were complied with, and whether the authorized official adopted the decision refusing to initiate a criminal case on lawful grounds and in compliance with the requirements of Article 148 of the Russian Criminal Procedure Code.

As follows from the case materials, on August 20, 2020, a crime report registered in the KUSP under No. 679 was received by the Tomsk Linear Department of the Russian Ministry of Internal Affairs, and investigator E.A. Bolshanina was assigned to conduct an inquiry in the manner prescribed by the Russian Criminal Procedure Code and make a decision.

As a result of the inquiry and the set of verification, operational-search, and procedural measures carried out by the investigator in relation to the crime report registered in the KUSP under No. 679, a decision was made to refuse to initiate a criminal case on the basis of paragraph 1, part 1, Article 24 of the Russian Criminal Procedure Code, due to the absence of the event of a crime under Part 1 of Article 111 of the Russian Criminal Code.

Contrary to the applicant's arguments alleging investigator inaction, the decision refusing to initiate a criminal case contains a detailed list of the measures taken to verify the crime report, including requests for legal assistance sent to the Federal Office of Justice of the Federal Republic of Germany and to the Kingdom of Sweden, which were denied, including due to A.A. Navalny's own objection to the release of copies of his medical records and the conclusions obtained (case file pp. 81-82). At the same time, the investigator assessed the poisoning account given by A.A. Navalny during questioning by the competent authorities of the Federal Republic of Germany in the course of executing the request for legal assistance, as follows from the text of the February 10, 2021 decision refusing to initiate a criminal case. Accordingly, the arguments of the complaint in this part are unfounded.

Moreover, under Article 38 of the Russian Criminal Procedure Code, an investigator is an official authorized, within the competence provided by that Code, to independently carry out investigative and other procedural actions and to make procedural decisions, and the court has no legal grounds under Article 125 of the Russian Criminal Procedure Code to interfere in the investigator's procedural activities.

In the opinion of the appellate court, based on the materials submitted, the court of first instance reasonably concluded that the fact of A.A. Navalny's poisoning had not been confirmed. In particular, this is evidenced by expert report No. 156-k, according to which the diagnosis of poisoning in respect of citizen A.A. Navalny was not confirmed (case file pp. 36-69). This report was prepared by experts with the necessary qualifications and experience in conducting expert examinations and who had no interest in the outcome of the case; accordingly, the appellate court has no grounds to distrust the experts' conclusions. At the same time, no documents confirming the contrary are present in the submitted case materials and none were provided by the applicant, although he had the opportunity to exercise the relevant procedural rights in order to ensure effective legal remedies.

At the same time, in adopting the challenged decision, the court of first instance reasonably treated with skepticism and found unpersuasive the applicant's arguments that the investigator should have examined the results of the investigation published in the public domain on behalf of the "international investigative group Bellingcat" and the publication *The Insider*, indicating that those results amounted to assumptions and assessments by the authors of those outlets. The reasons given by the court of first instance for its decision in this part raise no doubts for the appellate court. Likewise, in adopting the challenged decision, the court of first instance reasonably found unpersuasive the applicant's arguments that the investigator had not conducted an inquiry and had not made a decision under Articles 105 and 277 of the Russian Criminal Code, noting that conducting an inquiry under Articles 144-145 of the Russian Criminal Procedure Code and making a decision under the Criminal Code provisions cited by the applicant do not fall within the competence of investigators of the Linear Department of the Russian Ministry of Internal Affairs. The reasons given by the court of first instance for its decision in this part likewise raise no doubts for the appellate court. In the opinion of the appellate court, the court of first instance, acting within the scope of its authority, considered the complaint under Article 125 of the Russian Criminal Procedure Code and adopted a lawful and well-founded decision in denying the complaint, since it found no violations of criminal procedure law in the investigator's actions. All of the applicant's arguments set out in the complaint under Article 125 of the Russian Criminal Procedure Code were examined by the court of first instance and were given a proper legal assessment based on the law. The reasons for the decision adopted by the court of first instance raise no doubts for the appellate court. Accordingly, the ruling of the Kirovsky District Court of Tomsk dated April 29, 2021 denying the complaint of applicant V.I. Gimadi, submitted under Article 125 of the Russian Criminal Procedure Code against the February 10, 2021 decision of the investigator of the Investigative Division of the Tomsk Linear Department of the Russian Ministry of Internal Affairs refusing to initiate a criminal case, is lawful and well-founded and is not subject to reversal or amendment, and the applicant's appeal is not subject to satisfaction. On the basis of the foregoing, and guided by Articles 38913 and 38920 of the Russian Criminal Procedure Code, the appellate court

RULED:

The ruling of the Kirovsky District Court of Tomsk dated April 29, 2021 denying the complaint of applicant V.I. Gimadi, submitted pursuant to Article 125 of the Russian Criminal Procedure Code, against the February 10, 2021 decision of the investigator of the Investigative Division of the Tomsk Linear Department of the Russian Ministry of Internal Affairs refusing to initiate a criminal case, shall be left unchanged, and the appeal of V.I. Gimadi shall be denied. court This appellate ruling enters into legal force on the date of its adoption and may be appealed in accordance with Chapter 47 of the Russian Criminal Procedure Code to the Eighth Court of Cassation of General Jurisdiction.

Judge V.V. Polyakov