Court ruling on the appeal against the response of the Investigative Committee’s regional investigative directorate to the application to open a criminal case over the 2020 poisoning

Judge Yu.G. Dmitrieva Case No. 22-2186/2021

APPELLATE RULING

Novosibirsk May 12, 2021 287

Judge E.V. Bondarenko of the Novosibirsk Regional Court, with the court secretary, the prosecutor, the applicant, the interested party, with the participation of: D.A. Guseynova, O.S. Potekhina, V.I. Gimadi, S.A. Sinyakov,

having considered in a court hearing the appeal filed by applicant Vyacheslav Ilyich Gimadi in defense of the interests of Alexei Anatolyevich Navalny against the ruling of the judge of the Leninsky District Court of Novosibirsk dated February 20, 2021.

ESTABLISHED:

By the above ruling, the complaint of applicant V.I. Gimadi, filed pursuant to Article 125 of the Russian Code of Criminal Procedure, seeking recognition as unlawful of the inaction of officials of the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation, consisting in their failure to conduct a review under Article 144 of the Russian Code of Criminal Procedure in response to A.A. Navalny’s application to initiate a criminal case on the elements of offenses under Article 30 Part 3, Article 105 Part 1, and Article 277 of the Russian Criminal Code in connection with his poisoning on August 20, 2020, was dismissed.

In reaching this decision, the court stated that there were no grounds to believe that, in considering applicant V.I. Gimadi’s submissions, officials of the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation had been inactive or had acted contrary to the requirements of the law, thereby causing harm to the applicant’s constitutional rights and freedoms or hindering Alexei Navalny and his representatives in their access to justice.

Applicant and attorney V.I. Gimadi filed an appeal seeking reversal of the ruling as unlawful and unfounded, arguing that the court’s conclusions set out in the ruling did not correspond to the actual circumstances and that substantial violations of criminal procedure law had been committed.

According to the appeal, the court’s conclusion that another authority—the Transport Directorate of the Ministry of Internal Affairs of the Russian Federation for the Siberian Federal District—had conducted a review regarding Navalny’s hospitalization on August 20, 2020, does not correspond to the actual circumstances and has no legal significance, since the review was conducted not by that authority but by the Tomsk Linear Department of the Ministry of Internal Affairs for Transport under Article 111 of the Russian Criminal Code, whereas in his application the applicant requested a procedural decision under Article 30 Part 3, Article 105 Part 1, and Article 277 of the Russian Criminal Code in connection with the poisoning of A.A. Navalny, not under Article 111 of the Russian Criminal Code in connection with his hospitalization. Conducting a review by another law enforcement body under different articles does not relieve the investigative body that received the application of its duty to conduct a review and adopt a procedural decision under Articles 144–145 of the Russian Code of Criminal Procedure, and the copy of the response from the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation submitted to the court does not qualify as such. That body failed to fulfill its duty to conduct a review of the report of a crime. The case materials contain no information or documentary confirmation that one of the procedural decisions provided for by Article

145 of the Russian Code of Criminal Procedure had been adopted; therefore, recognizing the inaction as lawful in the absence of an adopted procedural decision contradicts Articles 144 and 145 of the Russian Code of Criminal Procedure. He considers the court’s reference to Federal Law No. 59 “On the Procedure for Considering Appeals from Citizens of the Russian Federation” and the Instruction “On Organizing the Receipt, Registration, and Review of Crime Reports in Investigative Bodies (Investigative Units) of the Investigative Committee of the Russian Federation System” dated October 11, 2012, No. 72, to be unfounded, since they do not exclude the duty of the investigator or head of the investigative body to consider a crime report in the manner provided by the Russian Code of Criminal Procedure; the said federal law is not a source of criminal procedure law and does not regulate the procedure for considering and making decisions on crime reports. Moreover, the applicant did not submit a general petition under that law, but a crime report under Article 141 of the Russian Code of Criminal Procedure. The crime report contains specific information indicating that a crime and its consequences occurred, a description of the circumstances of the crime known to the applicant at the time of filing, specific articles of criminal law under which the criminal acts could be classified, a reference to Article 141 of the Russian Code of Criminal Procedure, the applicant’s request to initiate a criminal case, and acknowledgment of the provisions of Article 306 of the Russian Criminal Code. He further argues that the criminal event of the intentional poisoning of A.A. Navalny in connection with his political activities did occur, as was also apparent from widely known official information from authorized foreign state bodies. In the appellant’s view, the investigative authorities’ failure to establish all the circumstances of the poisoning of a well-known opposition politician demonstrates the Russian authorities’ failure to fulfill their positive obligations under Articles 2 and 13 of the European Convention on Human Rights, which guarantee the right to life and the right to an effective remedy before a state authority. On these grounds, the appellant asks that the court ruling be set aside and that the complaint filed under Article 125 of the Russian Code of Criminal Procedure be granted. In his objections to the appeal, S.A. Sinyakov, representative of the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation, asks that the ruling be left unchanged and the appeal dismissed. At the court hearing, applicant V.I. Gimadi supported the appeal seeking reversal of the judge’s ruling on the grounds set out therein. Prosecutor O.S. Potekhina and the interested party, S.A. Sinyakov, asked that the judge’s ruling be left unchanged, arguing that it was lawful and well founded and that there were no grounds for its reversal. Having heard the participants in the court hearing and examined the case materials, I find that there are no grounds to grant the arguments of the appeal and that the judge’s ruling is lawful and well founded for the following reasons. As follows from the case materials, applicant V.I. Gimadi, acting in defense of the interests of A.A. Navalny, applied to the court with a complaint requesting recognition as unlawful of the inaction of officials of the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation, consisting in their failure to conduct a review under Article 144 of the Russian Code of Criminal Procedure in response to A.A. Navalny’s application to initiate a criminal case on the elements of offenses under Article 30 Part 3, Article 105 Part 1, and Article 277 of the Russian Criminal Code in connection with his poisoning on August 20, 2020.

The court of first instance considered the complaint in accordance with the requirements of Article 125 of the Russian Code of Criminal Procedure and correctly concluded that the complaint should be dismissed for the following reasons. Under Article 125 of the Russian Code of Criminal Procedure, an applicant has the right to appeal to a court against decisions, actions, or inaction of officials at the pre-trial stages of criminal proceedings that cause harm to the constitutional rights and freedoms of participants in criminal proceedings or hinder citizens’ access to justice. As follows from the case materials, on August 20, 2020, V.I. Gimadi, acting in the interests of A.A. Navalny, submitted an application to the Investigative Committee of the Russian Federation to initiate a criminal case on the elements of offenses under Article 30 Part 3, Article 105 Part 1, and Article 277 of the Russian Criminal Code. On August 27, 2020, V.I. Gimadi’s application was forwarded for consideration to the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation, and the applicant was notified accordingly (case file p. 31). On September 14, 2020, the applicant was notified that these applications had been considered by the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation and forwarded to the Transport Directorate of the Ministry of Internal Affairs of the Russian Federation for the Siberian Federal District for consideration (case file pp. 53, 35), because, in connection with the poisoning of A.A. Navalny on August 20, 2020, the investigative division of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia was already conducting a review under Articles 144–145 of the Russian Code of Criminal Procedure, and the submissions filed with the Investigative Committee of the Russian Federation contained no new allegations of any crime committed against A.A. Navalny. On September 15, 2020, these submissions were returned from the Transport Directorate of the Ministry of Internal Affairs of Russia for the Siberian Federal District to the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation, and on September 24, 2020, they were sent to the Investigative Committee of the Russian Federation to challenge the decision of the head of the Transport Directorate of the Ministry of Internal Affairs of Russia for the Siberian Federal District; the applicant was notified of this in writing (case file pp. 36, 46 verso, 47, 54, 55). On October 13, 2020, and October 20, 2020, V.I. Gimadi’s applications were again received by the Transport Directorate of the Ministry of Internal Affairs of Russia for the Siberian Federal District, and on November 5, 2020, the applicant was again notified that the investigative division of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia was conducting a review under Articles 144–145 of the Russian Code of Criminal Procedure, during which a set of verification measures was being carried out to establish the factual circumstances of what happened to A.A. Navalny on August 20, 2020 (case file pp. 57, 58). On November 14, 2020, investigator Yu.M. Pevneva of the investigative division of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia issued a decision refusing to initiate a criminal case; that decision was canceled the same day by R.A. Semashko, deputy head of the investigative division of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia, and the material was returned to the same investigator for additional review (case file pp. 24–28). On December 13, 2020, investigator Yu.M. Pevneva of the investigative division of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia again issued a decision refusing to initiate a criminal case; that decision was canceled the same day by R.A. Semashko, deputy head of the investigative division of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia, and the material was returned to the same investigator for additional review (case file pp. 129–133). 283

Following the additional review of the above applications, on January 11, 2021, investigator E.A. Bolshanina of the investigative division of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia issued a decision refusing to initiate a criminal case; that decision was canceled the same day by R.A. Semashko, deputy head of the investigative division of the Tomsk Linear Department of the Ministry of Internal Affairs of Russia, and the material was returned to the same investigator for additional review (case file pp. 134–138).

As follows from the decisions canceling the refusals to initiate a criminal case, the reason for their cancellation was that the investigative body had not yet received responses to previously sent requests for legal assistance addressed to the competent authorities of the Federal Republic of Germany and the French Republic.

In these circumstances, in deciding to dismiss the applicant’s complaint, the court of first instance correctly found no inaction on the part of officials of the West Siberian Transport Investigative Directorate of the Investigative Committee of the Russian Federation, since all of the applicant’s submissions were forwarded for procedural review and decision-making to the Transport Directorate of the Ministry of Internal Affairs of Russia for the Siberian Federal District, that is, to the authorized state body carrying out a set of verification measures aimed at establishing the factual circumstances of what happened to A.A. Navalny on August 20, 2020, and the applications contained no other information about any crime committed against A.A. Navalny.

At the same time, the court reasonably pointed out that there was no information about any other deterioration in A.A. Navalny’s health during the flight and the subsequent hospitalization—that is, apart from what occurred on August 20, 2020—and the applicant likewise identified none during the court proceedings.

Accordingly, the applicant’s arguments that the review was conducted under Article 111 of the Russian Criminal Code, whereas in his application he requested a procedural decision under Article 30 Part 3, Article 105 Part 1, and Article 277 of the Russian Criminal Code in connection with the poisoning of A.A. Navalny, rather than under Article 111 of the Russian Criminal Code in connection with his hospitalization, and that a review by another law enforcement body under different articles does not relieve the investigative body that received the application of its duty to conduct a review and adopt a procedural decision under Articles 144–145 of the Russian Code of Criminal Procedure, are untenable and unsupported by law, since criminal procedure law does not provide for multiple procedural reviews of the same facts by different bodies.

The court of first instance correctly found no inaction on the part of officials, since the above application by the applicant was considered by the proper official within the time limits established by law, and the applicant was promptly sent a response regarding the results of its consideration.

The foregoing shows that the conclusions of the court of first instance dismissing applicant V.I. Gimadi’s complaint are correct, were made by the court on the basis of the materials submitted, correspond to the circumstances of the case, and the appellate court has no grounds to disagree with them.

In these circumstances, the court of first instance reasonably concluded that A.A. Navalny’s access to justice had not been hindered and that his constitutional rights, including under Articles 2 and 13 of the European Convention on Human Rights, had not been violated.

With the above in mind, I find the judge’s ruling lawful and well founded, consistent with the requirements of Article 7 Part 4 of the Russian Code of Criminal Procedure; accordingly, applicant V.I. Gimadi’s appeal is not subject to satisfaction. Guided by Articles 389.20 and 389.28 of the Russian Code of Criminal Procedure, the appellate court RULED: the ruling of the Leninsky District Court of Novosibirsk dated February 20, 2021, issued on the complaint of applicant Vyacheslav Ilyich Gimadi in defense of the interests of Alexei Anatolyevich Navalny, shall be left unchanged, and applicant V.I. Gimadi’s appeal shall be dismissed. This appellate ruling may be appealed to the Eighth Court of Cassation of General Jurisdiction in the manner established by Chapter 47.1 of the Russian Code of Criminal Procedure and shall be considered in accordance with Articles 401.10–401.12 of the Russian Code of Criminal Procedure. Judge: E.V. Bondarenko

The original document is contained in criminal/civil case No. 3/10-27/2021 of the Leninsky District Court of Novosibirsk “TRUE COPY” signature of the judge court secretary 03.06