Court ruling on the appeal against the Investigative Committee’s response to the request to open a criminal case over the 2020 poisoning

45 Judge E.S. Nikolaeva Moscow File No. 10-18028/2020

APPELLATE RULING

September 28, 2020 The Moscow City Court, composed of presiding judge L.M. Smolkina, with judge’s assistant E.M. Konakova, with the participation of E.P. Ivannikova, prosecutor of a department of the Prosecutor General’s Office of the Russian Federation, and applicant V.I. Gimadi, acting under a power of attorney, considered in open court the appeal filed by applicant V.I. Gimadi in the interests of A.A. Navalny against the ruling of the Basmanny District Court of Moscow dated September 4, 2020, by which the complaint submitted pursuant to Article 125 of the Russian Code of Criminal Procedure was denied. Having heard the report of judge L.M. Smolkina, examined the case materials, heard the submissions of applicant V.I. Gimadi in support of the appeal, and the opinion of prosecutor E.P. Ivannikova, who considered it necessary to leave the court ruling unchanged and the appeal without satisfaction, the appellate court

FOUND:

Applicant V.I. Gimadi, acting in the interests of A.A. Navalny, filed a complaint with the Basmanny District Court of Moscow, in which he requested that the inaction of officials of the Investigative Committee of Russia be declared unlawful, such inaction consisting of the failure to conduct a review pursuant to Article 144 of the Russian Code of Criminal Procedure, the failure to adopt the procedural decision required by law on the application to initiate criminal proceedings, and the failure to send the applicant notice of the decision taken, and also requested that the violations be remedied. By ruling of the Basmanny District Court of Moscow dated September 4, 2020, applicant V.I. Gimadi’s complaint was denied. issued With In the appeal, applicant V.I. Gimadi, acting in the interests of A.A. Navalny, disagreeing with the court’s ruling, considers it unlawful, unfounded, unreasoned, and issued with a substantial violation of criminal procedure law, namely the requirements of Part 4 of Article 7, Article 125 of the Russian Code of Criminal Procedure, and Resolution No. 1 of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2009; he argues that the court’s conclusions do not correspond to the factual circumstances established at the hearing, and that the court’s conclusion that his application was considered in accordance with Federal Law No. 59-FZ “On the Procedure for Considering Appeals from Citizens of the Russian Federation” and the Instruction “On Organizing the Receipt, Registration and Verification of Crime Reports in the Investigative Bodies (investigative subdivisions) of the Investigative Committee of the Russian Federation” dated October 11, 2012 No. 72 is unfounded, sealed stitched and numbered and on I sheets

2 since, by virtue of Article 1 of the Russian Code of Criminal Procedure, the procedure for criminal proceedings in the territory of the Russian Federation is established by the Russian Code of Criminal Procedure, while Federal Law No. 59-FZ “On the Procedure for Considering Appeals from Citizens of the Russian Federation” is not a source of criminal procedure law and does not regulate the procedure for considering and deciding applications reporting a crime. He points out that the inaction of the Investigative Committee of Russia, expressed in the failure to conduct a review pursuant to Article 144 of the Russian Code of Criminal Procedure and the failure to adopt the procedural decision required by law, resulting from the application of other rules (on the consideration of citizens’ appeals) to a crime report, is unlawful. The court of first instance overlooked the fact that the inaction of the Investigative Committee of Russia violates Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. He requests that the court’s ruling be set aside and a new judicial decision be issued granting his complaint filed pursuant to Article 125 of the Russian Code of Criminal Procedure.

Having reviewed the submitted materials, heard the views of the participants in the proceedings, and discussed the arguments of the appeal, the court finds no grounds to set aside the judicial decision.

The Constitution of the Russian Federation, by guaranteeing everyone the right to judicial protection of his or her rights and freedoms (Part 1 of Article 46), imposes on the court the duty to ensure a fair procedure for the adoption of judicial decisions.

Under Part 1 of Article 125 of the Russian Code of Criminal Procedure, the decisions of an inquiry officer, investigator, or head of an investigative body refusing to initiate criminal proceedings or terminating criminal proceedings, as well as other decisions and actions (or inaction) of an inquiry officer, investigator, head of an investigative body, and prosecutor, may be challenged in court if they are capable of harming the constitutional rights and freedoms of participants in criminal proceedings or impeding citizens’ access to justice.

Within the meaning of the law, actions (or inaction) or decisions of officials that restrict citizens’ rights to participate in pre-trial criminal proceedings and thereby create an obstacle to a citizen’s further recourse to judicial protection of a violated right are to be regarded as impeding citizens’ access to justice.

The appellate court has established that, in deciding to deny the applicant’s complaint filed pursuant to Article 125 of the Russian Code of Criminal Procedure, the court strictly followed the requirements of criminal procedure law, fully examined all the circumstances referred to by the applicant in the complaint, and gave reasons for its conclusions.

In denying the applicant’s complaint, the court of first instance established that V.I. Gimadi’s application dated August 20, 2020, seeking the initiation of criminal proceedings on the grounds of offenses under Part 3 of Article 30, Part 1 of Article 105, and Article 277 of the Russian Criminal Code, in connection with the poisoning of A.A. Navalny on August 20, 2020

3 47 at Tomsk Airport, where A.A. Navalny drank one glass of black tea at the “Vienna Cafe,” after which he boarded a flight of Sibir Airlines JSC, addressed to the Investigative Committee of Russia, was reviewed by Y.E. Vernigor, an inspector for appeals in the Directorate for the Review of Citizens’ Appeals and Documentation Support of the Investigative Committee of Russia, pursuant to Federal Law No. 59-FZ “On the Procedure for Considering Appeals from Citizens of the Russian Federation”; the applicant was notified of this by a reply dated August 27, 2020, and the application itself was forwarded for handling to the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation (case file p. 15).

Contrary to the arguments in the appeal, the time limits and form for considering the applicant’s appeal as provided by the Federal Law “On the Procedure for Considering Appeals from Citizens of the Russian Federation” were not violated.

At the same time, there are no grounds to believe that, in considering V.I. Gimadi’s application, officials of the Investigative Committee of the Russian Federation engaged in inaction or acted contrary to the requirements of the law, as a result of which harm could have been caused to the applicant’s constitutional rights and freedoms or access to justice for A.A. Navalny and his representatives could have been impeded.

The appellate court also agrees with this conclusion of the court of first instance, and therefore the arguments of applicant V.I. Gimadi regarding the invalidity of the judicial decision cannot be regarded as persuasive.

Contrary to the complainant’s arguments, the court’s conclusions are based on the materials examined at the hearing and comply with the provisions of criminal procedure law. The court of first instance examined all relevant circumstances, verified the applicant’s arguments, and gave them a proper legal assessment. At the same time, the court’s conclusions are supported by references to the evidence examined and the applicable legal provisions.

Contrary to the arguments of the appeal, in considering the complaint filed pursuant to Article 125 of the Russian Code of Criminal Procedure, the judge did not violate the norms of criminal procedure law, the Constitution of the Russian Federation, or the rules of international law.

The hearing on the complaint filed by the applicant pursuant to Article 125 of the Russian Code of Criminal Procedure was conducted in compliance with the adversarial principle, with the parties being given equal opportunities to exercise their procedural rights and with the participants in the proceedings being afforded the opportunity to substantiate their position on the matter under consideration.

In view of the foregoing, the appellate court finds the judge’s ruling to be reasoned, based on the materials examined, and compliant with the requirements of Part 4 of Article 7 of the Russian Code of Criminal Procedure. On the examined

4 In these circumstances, the appellate court finds no grounds to grant the appeal on the arguments set out therein. On the basis of the foregoing, and guided by Articles 389.13, 389.20, 389.28, and 389.33 of the Russian Code of Criminal Procedure, the appellate court

RULED:

The ruling of the Basmanny District Court of Moscow dated September 4, 2020, denying applicant V.I. Gimadi’s complaint filed pursuant to Article 125 of the Russian Code of Criminal Procedure, shall be left unchanged, and applicant V.I. Gimadi’s appeal shall be denied.

Judge L.M. Smolkina

THIS DISTRICT COURT OF THE CITY OF MOSCOW • RUSSIAN FEDERATION •• BASMANNY DISTRICT OF THE CITY OF MOSCOW TRUE COPY