Ruling on the complaint against the refusal of the Main Military Investigative Directorate of the Investigative Committee to investigate the possible role of security service personnel in the poisoning. The court did not require the agency to examine this version within the criminal case, even though it was central to establishing state involvement in the attempted murder.
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District Military Court 2nd Western COPY Judge A.A. Tolkachenko APPELLATE RULING No. 22K-254/2021 May 18, 2021 Moscow The 2nd Western District Military Court, composed of presiding judge V.V. Krasnov, with judicial assistant B.V. Ozaev, and with the participation of military prosecutor A.S. Yurochkin, Colonel of Justice of Department 5 of the Main Military Prosecutor's Office, examined in open court the materials of the judicial review on the appeal filed by V.I. Gimadi against the ruling of the judge of the 235th Garrison Military Court dated March 22, 2021, by which the complaint of representative V.K. Los, submitted in defense of the interests of A.A. Navalny, concerning the inaction of senior investigator for especially important cases D.E. Pankratov, Colonel of Justice of the 1st Control-Zonal Department of the Directorate for Procedural Control and Criminalistics of the Main Military Investigative Directorate of the Investigative Committee of the Russian Federation (hereinafter, the 1st Control-Zonal Department of the Directorate for Procedural Control and Criminalistics of the Main Military Investigative Directorate of the Investigative Committee of Russia), in connection with the consideration of his applications dated December 15 and 21, 2020, was denied.
Having heard, after the report of the presiding judge, the opinion of the military prosecutor, who considered it necessary to leave the judge's ruling unchanged and the appeal without satisfaction, the district military court found:
On February 19, 2021, Los, acting under a power of attorney in the interests of Navalny, applied to the 235th Garrison Military Court under Article 125 of the Criminal Procedure Code of the Russian Federation with a complaint regarding the inaction of officials of the Main Military Investigative Directorate of the Investigative Committee of the Russian Federation, connected with the failure to adopt a procedural decision on his crime reports dated December 15 and 21, 2020.
By the ruling of the judge of the 235th Garrison Military Court dated March 22, 2021, the applicant's complaint was denied.
In the appeal, Gimadi, acting under a power of attorney in the interests of Navalny, expresses disagreement with the above ruling, considers it unlawful and unfounded because, in his view, the judge incorrectly assessed the factual circumstances set out in the complaint.
He further points out that the submitted applications should have been registered in the crime report log and that a review should have been conducted on them in accordance with Articles 144 and 145 of the Criminal Procedure Code of the Russian Federation.
In the appellant's view, the court's conclusion that the applications seeking the initiation of criminal proceedings had already been considered by officials of the Transport Directorate of the Ministry of Internal Affairs of the Russian Federation for the Siberian Federal District is untenable, since the review was conducted by the Tomsk Linear Department of the Ministry of Internal Affairs for Transport in relation to a different alleged offense. This, he argues, did not relieve officials of the Main Military Investigative Directorate of the Investigative Committee of the Russian Federation of the obligation to conduct a review of the offenses identified by the applicant under Articles 144 and 145 of the Criminal Procedure Code of the Russian Federation and to issue a procedural decision based on its results.
Describing his version of Navalny's alleged poisoning, and also setting out the position of certain state bodies of foreign countries regarding that incident, he states that the judge's reference in the ruling to the Instruction "On the Organization of the Receipt, Registration, and Review of Crime Reports in the Investigative Bodies (Investigative Units) of the Investigative Committee of the Russian Federation" is not based on law, since a crime report must be considered in accordance with the requirements of the Criminal Procedure Code of the Russian Federation.
of human rights
In the appellant's view, the inaction of officials of the Main Military Investigative Directorate of the Investigative Committee of the Russian Federation is contrary to Articles 2 and 13 of the European Convention on Human Rights and Fundamental Freedoms, as it violates Navalny's right to have the circumstances of his poisoning established and to effective legal protection before a state authority.
In conclusion, the appellant asks that the ruling of the judge of the 235th Garrison Military Court dated March 22, 2021, be set aside.
In their objections to the appeal, military prosecutor A.S. Yurochkin, Colonel of Justice of the 4th Department of the 5th Directorate of the Main Military Prosecutor's Office, and senior investigator for especially important cases R.Sh. Neverov, Colonel of Justice of the 1st Control-Zonal Department of the Directorate for Procedural Control and Criminalistics of the Main Military Investigative Directorate of the Investigative Committee of Russia, consider the ruling issued on March 22, 2021, by the judge of the 235th Garrison Military Court to be lawful and well-founded and propose that the appeal be denied.
Having reviewed the submitted materials and assessed the arguments of the appeal, the court reaches the following conclusions.
Under Part 1 of Article 140 of the Criminal Procedure Code of the Russian Federation, the grounds and bases for initiating a criminal case are: a crime report, a voluntary confession, information about a committed or planned crime received from other sources, and a prosecutor's order sending the relevant materials to the preliminary investigation body for resolution of the issue of criminal prosecution.
According to Article 144 of the Criminal Procedure Code of the Russian Federation, an inquiry officer, an inquiry body, an investigator, and the head of an investigative body are obliged to accept and review a report of any committed or planned crime and, within the limits of their competence, make a decision on it.
At the same time, by virtue of Part 2 of Article 140 of the Criminal Procedure Code of the Russian Federation, not every report constitutes grounds for initiating a criminal case, but only one that contains sufficient data indicating signs of a crime. Only in that
case may the report serve as grounds for conducting a review and making a decision to initiate or refuse to initiate a criminal case. Thus, criminal procedure law does not provide for a mandatory pre-investigation review of every submitted application or for the adoption, based on the results of such a review, of a final decision in the form of a formal ruling.
By Order No. 72 of October 11, 2012, the Chairman of the Investigative Committee of the Russian Federation approved the Instruction "On the Organization of the Receipt, Registration, and Review of Crime Reports in the Investigative Bodies (Investigative Units) of the Investigative Committee of the Russian Federation" (hereinafter, the Instruction).
Paragraph 20 of the Instruction provides that applications and submissions that do not contain information about circumstances indicating signs of a crime are not subject to registration in the log and do not require a procedural review in the manner prescribed by Article 145 of the Criminal Procedure Code of the Russian Federation.
At the same time, under paragraph 2 of paragraph 20 of the Instruction, and in accordance with the decision of the Supreme Court of the Russian Federation of February 10, 2014, No. AKPI13-1285, paragraph 20 of the Instruction applies only to those submissions in which applicants seek to hold judges, prosecutors, investigators, inquiry officers, and other persons liable in connection with disagreement with procedural decisions they have made, and merely express an assumption that those persons may have committed an official offense, without identifying specific data indicating signs of a crime.
According to Los's applications of December 15 and 21, 2020, acting in Navalny's interests, he requested that the FSB officers named in the applications be held criminally liable under Part 3 of Article 30, paragraphs "g" and "l" of Part 2 of Article 105, Article 277, and Part 3 of Article 303 of the Criminal Code of the Russian Federation in connection with the poisoning of Navalny on August 20, 2020, and the falsification of evidence in a criminal case.
As follows from the decision of senior investigator for especially important cases Pankratov dated December 30, 2020, he considered Los's applications of December 15 and 21, 2020, as citizen appeals under Federal Law No. 59-FZ of May 2, 2006, "On the Procedure for Considering Appeals from Citizens of the Russian Federation," because, in his view, the applications did not contain specific information about circumstances indicating signs of a crime in the actions of FSB officers, and therefore there were no grounds for a procedural review under Articles 144 and 145 of the Criminal Procedure Code of the Russian Federation.
The investigator's reply also stated that copies of the applications had been sent, in accordance with the established jurisdiction, to the Transport Investigative Directorate of the Ministry of Internal Affairs of Russia for the Siberian Federal District, at the place where the procedural review concerning Navalny's hospitalization on August 20, 2020, was being conducted, as well as to the FSB of Russia.
According to a communication from Lieutenant Colonel Semashko, deputy head of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia and head of the investigative division, dated March 19, 2021, in connection with Navalny's hospitalization on August 20, 2020, in a medical institution in Omsk, the investigative division
of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia conducted a review under Articles 144 and 145 of the Criminal Procedure Code of the Russian Federation during the period from August 20, 2020, to February 10, 2021, and, based on its results, on February 10, 2021, decided to refuse to initiate a criminal case pursuant to paragraph 1 of Part 1 of Article 24 of the Criminal Procedure Code of the Russian Federation, of which the interested parties were notified.
At the same time, it was stated that on January 15 and 26, 2021, applications from Navalny's representative, Los, were received by the Transport Directorate of the Ministry of Internal Affairs of Russia for the Siberian Federal District from the Main Military Investigative Directorate of the Investigative Committee of Russia, and these were considered by the Tomsk Linear Department of the Ministry of Internal Affairs of Russia in accordance with Federal Law No. 59-FZ and the Instruction "On the Organization of the Consideration of Citizens' Appeals in the System of the Ministry of Internal Affairs of Russia" (approved by Order No. 707 of the Ministry of Internal Affairs of Russia dated September 12, 2013), of which the applicant was notified.
In these circumstances, it must be concluded that Los's applications of December 15 and 21, 2020, do not contain any new and sufficient information about circumstances indicating signs of crimes in the actions of FSB officers, but are formal in nature and contain only the author's assumption that crimes may have been committed. Accordingly, the court of first instance correctly concluded that the requests contained in the complaint, including the request to compel the investigative body to conduct a review of the applicant's reports under Articles 144 and 145 of the Criminal Procedure Code of the Russian Federation, were not subject to satisfaction.
Nor does the applicant's reference in the reports to the existence of other criminal offenses indicate otherwise, since the investigative division of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia conducted a review under Articles 144 and 145 of the Criminal Procedure Code regarding Navalny's hospitalization on August 20, 2020, in a medical institution in Omsk.
Under Part 1 of Article 125 of the Criminal Procedure Code of the Russian Federation, decisions of an inquiry officer, investigator, or head of an investigative body refusing to initiate a criminal case or terminating a criminal case, as well as other decisions and actions (or inaction) of an inquiry officer, investigator, head of an investigative body, and prosecutor that may harm the constitutional rights and freedoms of participants in criminal proceedings or impede citizens' access to justice, may be appealed to a district court at the place where the act containing signs of a crime was committed.
As follows from the clarifications set out in Resolution No. 1 of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2009 (as amended on January 28, 2014), "On the Practice of Court Consideration of Complaints Under Article 125 of the Criminal Procedure Code of the Russian Federation," actions (or inaction) or decisions of officials that impede citizens' access to justice include those that restrict citizens' rights to participate in pre-trial criminal proceedings and create an obstacle to their further seeking judicial protection of a violated right. These include, for example, refusal to recognize a person as a victim, refusal to accept a crime report or inaction in reviewing such reports, a ruling suspending the preliminary investigation, and others.
In these circumstances, it should be recognized that the decision of senior investigator for especially important cases Pankratov dated December 30, 2020, when
considering Los's reports of December 15 and 21, 2020, connected with the refusal to conduct a review, did not harm the constitutional rights and freedoms of participants in criminal proceedings and did not impede the applicant's or the person he represented's access to justice.
For the same reasons, the appellate court also finds no violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950.
In making its decision, the court also takes into account that the validity of the conclusions of officials of the preliminary investigation bodies regarding the absence or existence of grounds for initiating a criminal case, and regarding whether a report does or does not contain information about circumstances indicating signs of a crime, is not subject to review under Article 125 of the Criminal Procedure Code of the Russian Federation, since determining the presence or absence of such circumstances is assigned by Article 145 of the Criminal Procedure Code of the Russian Federation to their exclusive competence.
Accordingly, the ruling of the judge of the 235th Garrison Military Court dated March 22 of this year is lawful, well-founded, and reasoned.
No violations of criminal procedure law warranting its reversal or amendment, including on the grounds set out in the appeal, have been established.
On the basis of the foregoing and guided by Articles 389.9, 389.13, paragraph 1 of Part 1 of Article 389.20, and Articles 389.28 and 389.33 of the Criminal Procedure Code of the Russian Federation, the district military court
rules:
The ruling of the judge of the 235th Garrison Military Court dated March 22, 2021, denying the complaint of representative V.K. Los, submitted in defense of the interests of A.A. Navalny, concerning the inaction of senior investigator for especially important cases D.E. Pankratov, Colonel of Justice of the 1st Control-Zonal Department of the Directorate for Procedural Control and Criminalistics of the Main Military Investigative Directorate of the Investigative Committee of the Russian Federation, in connection with the consideration of his applications dated December 15 and 21, 2020, shall remain unchanged, and the appeal of V.I. Gimadi shall be denied.
This appellate ruling may be appealed by cassation to the Military Court of Cassation through the 2nd Western District Military Court in the manner established by Chapter 47.1 of the Criminal Procedure Code of the Russian Federation, within six months from the date it was issued.
Presiding Judge Certified true.
Judge of the 2nd Western District Military Court
V.V. Krasnov