Retrial of the **Kirovles Case**. Court video recording. Hearing 1. Part 1

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we will

how, what

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come on

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hour

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you. I see many new faces. Thank you

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with

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RAPSI (Russian Legal Information Agency), or...

for the sake of

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both... all right, everyone

stand. Hello, please wait

please

The court session is now open.

The criminal case is being heard on the charges against

Navalny, Alexei Anatolyevich, under

part 6 of Article

334, Article 160... Pyotr Yuryevich... part...

Article... part 3, part 4 of Article

160... Secretary, please state... who is required...

The following have appeared for the court session:

the state prosecutors, the head

of the department of state prosecution and

appeals of the Kirov Region Prosecutor’s Office

Sergey Vladimirovich Bogdanov, prosecutor

of the department for supervision over compliance with leg

islation on combating corruption

of the Kirov Region Prosecutor’s Office, ...

Evgeny Nikola... Nikolaevich, representative

of the injured party; Larisa Yuryevna Agalakova

the defendant, Alexei Anatolyevich Navalny

Pyotr Yuryevich Ofitserov, defense counsel, attorney

Olga Olegovna Mikhailova, attorney; Kobzev

Vladimir ...vich, attorney; Svetlana Davydova

Viktorovna. Witnesses for this court

session have not

... The composition of the court is announced. The criminal

case is being heard by presiding judge Yurin

... Maria Vladimirovna... the state

prosecutors previously introduced

the secretary, attorneys Mikhailova and Kobzev

go ahead

go ahead, the representative

of the injured party. The participants in the court

session are advised of their right to challenge the composition of the court

the secretary, and counsel if any of them

is a relative or civil party...

civil plaintiff... in this

case participated previously in the capacity of

or is otherwise interested in any part of this

case... there are grounds to challenge the presiding

judge, the state prosecutor, or counsel

on circumstances involving their

participation in the proceedings of the case. Parties

...?

at this stage

No? Then the identity is established

of the defendants and the injured party

Pyotr, please stand

state your full name, date and place of birth, ... May ... year

city, nationality, citizenship—Russian

Federation, higher education, marital

status

wife, have...

year of birth

please

all right

Excuse me, 2006, 2008, and

2011, 23... and yes, ninety

seven—so one of them is

a minor, four are not

adults, one is an adult

adults—these are minors

yes

Are you employed? Yes... sole proprietor Ofitserov

You are not obliged to... no

No. You are registered and reside at

the address: Moscow, Ozyornaya Street, building 15

apartment 95, building 1

well, yes. So at present you are not

convicted

Yes. A copy of the indictment

was received during the consideration of the previous

case. Yes, yes. So, the time and place of the court

session then

Well, two notices came by mail

uh, last week, more than five days ago, yes

Mm-hmm

Please, Alexei Anatolyevich, stand up

please. Navalny, Alexei Anatolyevich

date and place of birth: June 4, nineteen seventy

six, Butyn village, Moscow Region

Odintsovo District. Yes, Odintsovo

District. Nationality, citizenship: Russian

Russia. Higher education. Marital

status: married. Two minor

children, born in

2001 and 2008

At present, employed as a sole proprietor

Navalny. Military

service-liable? Yes. Registered, residing

registered at: Moscow, Lyublinskaya Street, 175/15

and I live—I rent an apartment on Masterkova Street

Oh, I see

Have you been prosecuted criminally

yes, held criminally liable

more than once. Let's

write down which convictions are currently in effect

currently active

a conviction by the Moskvoretsky Court—what year

was it

For what

Moskvoretsky District Court

of Moscow

Decem—December, what

year, 3 to ... years suspended, and the article—here

please, which article

state it: Article 159, Part 4, Part 3

no, four under part four

the sentence, once again: 3 ... suspended for 3

and 5—that is imprisonment, uh-huh, and ... suspended

what was the probationary

term again

Mm-hmm, one active conviction. Yes. Ah, yes, that's all for you

the others, so to speak, have already been expunged

Mm-hmm. You also received the indictment

and were notified of this court hearing more than

5 days ago

yes

please. So, the defense side was

also notified more than five days ago, yes

the lawyers, yes

the rights of the defendants are being explained

as provided for by Article 47 of the Criminal Procedure Code of the Russian Federation

to know what you are charged with, to object to the brought

charges, to testify regarding the charges

or to refuse to testify

if you agree to testify

you must know that your testimony may be

used as evidence in

the case, including if you later refuse

to testify; to present evidence

to file motions

to challenge participants in the proceedings and to use the assistance of counsel

to review the order appointing

an expert examination and to put questions to the expert

to review the expert opinion and make, at your own expense,

copies from the materials of the criminal

case; to file complaints regarding the actions of the court

to object to the termination of the criminal case

to participate in the proceedings before the court of first instance and

the appellate and supervisory instances

to review the record of the court hearing and submit

comments on it; to appeal the judgment or

court ruling; to receive copies

of appealed decisions and to receive copies

of complaints and submissions filed in the case

and to submit objections to them

in accordance with Article 51 of the Constitution of the Russian Federation

you have the right to refuse to testify against

yourself and your relatives. Are your rights clear

yes

Yes. The identity of the victim's representative is being established

Please stand up

Documents. Agalakova Larisa Yuryevna

Head of the Property Management Department

of the Ministry of State Property

of the Kirov Region. I ask that it be attached

to the case materials. Please state your date of birth

and place—25, 25 May

1978, city of Kirov. Official address

city of Kirov, 69 Karl Rita Street

Mm-hmm, yes. I ask that it be attached to the case materials

an extract from the resolution of the government

of the Kirov Region dated March 17, 2015, on

the renaming of the department

of state property of the Kirov

Region into the Ministry of State

Property of the Kirov Region. I also ask

to allow me to participate in the proceedings as

the representative of the victim and

to attach to the case materials the power of attorney in

my

name

Does anyone object to attaching the documents

On the basis of Part 1 of Article 42

to admit as the representative

of the victim, the Ministry of State

Property of the Kirov Region

to you

to know that you may refuse to testify against

yourself

and your relatives; if you agree to testify

your statements may be used by the court as

evidence in this case, including

if you later refuse to give

that testimony; to present

evidence, to file motions

to challenge participants, to review the court's ruling on

the appointment of an expert examination, the expert opinion, and to receive

copies of the judgment and rulings; to participate

in the criminal case before the court of first

and subsequent instances; to speak in the judicial

debate; to support the prosecution

to review the record of the court hearing and submit

comments; to file complaints about the actions of the court

to appeal the judgment and rulings of the court

to know about complaints and submissions filed

Are your rights clear? Yes, clear

Please. The persons participating in the court

hearing are informed of the rules

of the court hearing as provided for by Article

257, namely: when the judges enter, all

those present in the courtroom

stand up. All participants in the trial

address the court and give

testimony and make statements while standing

an exception to this rule may be

granted with the permission of the

presiding judge

participants in the trial

as well as persons present in the courtroom

address the judge as 'Your Honor'

The court bailiff responsible for order in the courtroom

carries out the instructions of the presiding judge

The lawful demands of the court bailiff responsible for maintaining

order during the court hearing are binding

on all persons present in the courtroom

The parties are also informed of the measures

that may be taken for violating order

during the court hearing, as provided for by

Article 258. In the event of a violation of order during the court hearing

of the hearing, failure to comply with the orders

of the presiding judge or the court

bailiff, any person present in the courtroom

at the court hearing shall be warned about

the inadmissibility of such conduct, or

shall be removed from the courtroom

or be subject to a sanction in

accordance with Articles 117 and 118 of the Code of Criminal Procedure of the Russian Federation

If the prosecutor or defense counsel fails to comply with

the orders of the presiding judge,

the hearing of the criminal case may, by ruling

or order, be adjourned if this does not

prejudice the criminal case

At the same time, the court shall

notify the higher prosecutor and

the relevant bar chamber accordingly. The defendant

may be removed from the courtroom

until the end of the parties' arguments; at the same time

he must be granted the right

to make a final statement. In that case, the judgment

must be pronounced in his presence

or served on him against signature immediately after

it is pronounced. And in the courtroom

an audio recording of the court proceedings is being made

Representatives of the mass media are also present

who are carrying out photo

video and film recording of the court hearing

A broadcast of the court hearing is being conducted. Before the court hearing proceeds,

the parties are invited

to state their position on this

issue. Prosecution,

does anyone wish to speak on this issue?

to speak

wish

Defense side.

Defense, we have heard. Excuse me, regarding

this, we do not object. Or shall we speak afterward? Yes, we

support it. Support.

Unanimously.

Then members of the press are permitted to conduct photo

video and film recording during the court hearing

hearing.

However, without the use of flashes or

other equipment. So please turn off your flashes

in accordance with Article 271 of the Code of Criminal Procedure of the Russian Federation.

Do the parties have any motions to summon new witnesses, experts,

specialists, to request physical

evidence, documents, or opinions

as evidence?

Any motions?

Defense side: We do. We have a number of

motions.

In particular, given that we are gathered here

exclusively for the purpose of

implementing the judgment of the European Court

which found the previous

verdict handed down by the Leninsky District

Court of the city of Kirov unlawful, we move for

the termination of the criminal case and criminal

prosecution. Oh, please.

Thank you. We believe that the ongoing

criminal prosecution of Navalny and

Ofitserov, as well as the repeated judicial

proceedings on charges of

committing the offense предусмотренного

by Part 4

of Article 160 of the Criminal Code, are

arbitrary, unlawful, and

demonstrate non-compliance with

the judgment of the European Court of

Human Rights of February 23, 2016

which entered into force on July 4, 2016.

The European Court found serious

violations of the rights of Navalny and Ofitserov

the existence of which does not currently allow

the court to consider this

criminal

case. First, the European Court

established that Navalny and Ofitserov were

convicted for acts that were not criminally punishable

as a result of

the arbitrary application of criminal

law. It concluded that

the Russian courts found Ofitserov

guilty of actions

indistinguishable from ordinary commercial

intermediary activity, and Navalny

for facilitating that activity. The judgment of the European Court states

that the judgment of the European Court noted

that the case presented a situation in which

in particular, as stated in paragraph

115 of the judgment, the actions that were

characterized as criminally punishable

fell entirely outside the scope

of the article

under which they were convicted and did not

correspond to the original purpose of that

article. In other words, the criminal law

was subjected to arbitrary and unforeseeable

interpretation to the detriment of the applicants, which

led to a manifestly unreasonable outcome

of the judicial

proceedings. The above conclusions

indicate that the national

courts, by and large, failed to ensure

a fair trial in the

applicants' case. In addition to the above,

it may be

noted that

beyond mere appearances, a detailed

analysis of the arbitrary application

of criminal law in this case

is contained in paragraphs 110-116 of the Court's judgment

of February 23, 2016. It is included

in the case file, and attached to it, including

also the

translation. The European Court sufficiently

analyzed in detail both the actions

of Navalny and Ofitserov and

the activities of VLK.

The European Court analyzed the contract concluded between

the parties, with appendices for the supply of

timber products, as well as the separate

subsequent judicial consideration

of the criminal case against the former

general director, Opalev, in

separate proceedings under a special procedure

At the same time, the European Court found

The lawfulness of the applicants’ actions and

the arbitrary

NEZA has already established that, quoting the judgment,

the European Court found that the national authorities

had applied

criminal law arbitrarily and found the applicants

guilty of acts that

were indistinguishable from ordinary commercial

activity, in violation of Article 6

of the Convention, the European Court therefore did not consider it

necessary to examine separately

the question of whether the conviction of

Navalny and Ofitserov guilty of

committing the offence provided for in

Article 160 of the Criminal Code constituted a violation of

Article 7 § 1 of the Convention

(no punishment except on the basis

of law). Article 7 of the Convention

guarantees that no one may be

convicted for any act

which, under the national or

international law applicable at the time

it was committed, did not constitute

a criminal

offence. Thus, taking into account

the position of the European Court, we believe that

there are no legal grounds for

a new judicial examination of this

criminal case. The actions taken under the

arbitrarily constructed charges against

Navalny and Ofitserov for committing the offence

provided for in Article 160 of the Criminal

Code of the Russian

Federation. Second, it is perfectly obvious that

this criminal prosecution of Navalny

is still needed

by

Second, it is perfectly obvious that this

criminal prosecution of Navalny is still

needed by the authorities in order to

exclude him from public life, expose

the corrupt activities of senior

state officials, and remove him from participation in

elections. This criminal

prosecution was initiated in 2010

after Navalny published

an anti-corruption investigation into the

construction of the Eastern Siberia–Pacific Ocean

oil pipeline, which implicated

senior state officials.

The criminal prosecution

of Navalny would have been impossible without

the accusation against

Ofitserov. After decisions refusing to

open a criminal case, Navalny and

Ofitserov were charged criminally under

under

Article 165 of the Criminal Code of the Russian

Federation: causing property

damage by deception or abuse of

trust in the absence of signs of

theft. However, this criminal case

was terminated for lack of

the elements of a crime in their actions. Then

the decision to terminate the criminal

case was overturned, and the investigation

was assigned to investigators of the highest

investigative body of the Russian

Investigative Directorate,

the Investigative Committee of the Russian

Federation, following the direct public instruction of

of the Chairman of the Investigative Committee,

A great deal of attention was drawn to the investigation

from the public and the mass

media. Representatives

of the Investigative Committee, including its

chairman, regularly made statements in the media

that were condemnatory

toward Navalny, even before the circumstances of the

criminal

case in which the European Court found

a violation of the applicants’ right to a fair

trial.

In particular, the European

Court noted the following in its judgment:

it is impossible to overlook the fact that

the first criminal case in this matter was

opened on 9 December 2010, three

weeks after the publication of

materials implicating senior

officials of the Russian state.

Over the following two years, the criminal

case was terminated several times and then

reopened on the direct instruction of

Mr. Bastrykin, the Chairman

of the Investigative Committee. This surge

in the authorities’ activity occurred at a time

when the first applicant was conducting

an investigation into the improper activities

of Mr. Bastrykin himself, as a result of which

on 26 July 2012 there were

published reports that

Bastrykin’s commercial activities and

his possession of a residence permit abroad

were incompatible with his official

position. The judgment of the European

Court describes in detail not only the role

of the Chairman of the Investigative Committee,

who gave direct instructions to his

subordinates about the need for the criminal

prosecution of Navalny in the Kirovles

case, but also assesses the applicants’ arguments

regarding the criminal

prosecution as politically motivated. As a

result, the European Court reached the following

conclusion: it is obvious to the Court, as it should

also have been obvious to the national courts,

that there was a causal link between

Navalny’s public activities and the decision of the Investigative

Committee to initiate criminal proceedings against

him; there was a cause-and-effect

relationship.

Accordingly, the criminal

prosecution of Navalny and Ofitserov,

which was initiated not for

the purposes of justice but for

other politically motivated aims, should not

continue, but should be terminated.

terminated immediately

and the third point of our

motion reads as follows

It is absolutely clear that there are no

genuine legal grounds for

bringing criminal charges against

Navalny and Ofitserov, and there were none and there are none

at present in the materials

of this criminal case there is not a single

piece of evidence confirming

the existence of signs of embezzlement

of property, which indicates

the innocence of Navalny

and Ofitserov. Thus, the legal

position in this criminal case

is absolutely clear: the scope and purpose

of Article 160 of the Criminal Code of the Russian

Federation, taking into account the resolution of the Plenum

of the Supreme Court on judicial practice in

cases of fraud and misappropriation

and embezzlement, does not allow bringing

criminal liability for committing

theft against persons who acted in

accordance with the law; nor may they be

subjected to criminal prosecution on

political

grounds. Based on the foregoing, we

request, for the purpose of executing the judgment

of the European Court dated February 23, 2016

to terminate the criminal case and the criminal

prosecution of Navalny

and Ofitserov due to the absence in their

actions of the elements of a crime on

the grounds provided for in paragraph 2 of

part 1 of Article 24 of the Criminal Procedure

Code and paragraph 2

of part 1 of Article 27 of the Criminal Procedure

Code. I ask

that our

motion be entered into the record. Yes.

Support it? I do, Your Honor, and

I would like to draw attention to the fact that a similar

motion was made by us on the first day

of the trial, which took place 3 years ago, but

at that time such a motion could

have been perceived by many as having a certain

political character, although it was precisely the

political nature of the charges that was

obvious to everyone sitting in this courtroom, from

the prosecution to Judge Blinov. Now,

3 years later, we won in court—in

the European Court of Human Rights. This

was a great deal of

work; we presented all the evidence

and the European Court agreed with us, and with us

the Presidium of the Supreme Court also agreed

of Russia. Therefore, we have come here

now with a

final judicial decision that

was issued by Russia’s highest judicial authority

which agreed with the ECHR’s (European Court of Human Rights) ruling

which directly states that criminal

law was applied arbitrarily. Therefore,

taking into account the ECHR’s ruling and the position

of the Presidium of the Supreme Court, we consider

any further conduct of

these proceedings simply impossible. After all, everyone wanted

preclusion, didn’t they—according to your favorite

Opalev. Well then, excuse me, we have

preclusion based on the ECHR’s ruling and the Presidium

of the Supreme Court. So I repeat: we

consider the holding of this

trial impossible. Thank you.

Anything else? Yes, counsel for Ofitserov also

of course supports the motion. As you

can see, it is collective, it has been coordinated

between the parties. I want to tell you that

the violations identified by the European

Court of Human Rights really

make any further

proceedings impossible

because it is impossible to move forward

since the violations the

European Court speaks of truly

are irremediable. If the court now

begins considering the criminal case

on the merits, then the court will undoubtedly

commit the same violations, because I

will explain the position: the act

with the commission of which

my

client is charged arises from entrepreneurial

activity, and it cannot be turned into something else

The prosecutors will not be able, nor will the court be able,

to accept this type of indictment

Do you understand what the issue is?

He certainly will not cease to be a witness

the criminal case against him will not

cease to be a severed criminal

case, and nothing will change. The European

Court indicated

that

because this is tainted testimony, because

Opalev was not in any real sense a witness;

in reality, Opalev

was

a defendant. You understand, these irremediable

violations are not going anywhere, and in

the end, if the court conducts the trial

and then retires

to the deliberation room to render

a verdict, that verdict will be exactly the same

as the one we saw 3 years ago, with the same

same violations. Why do you think that? Because

nothing will change. Or do you

want

me to

speak? And you, Your Honor, will have

perhaps you, Your Honor, will have

the opportunity to express yourself in your

ruling, which you will issue in the

deliberation room. I think that in

this case, in this case, the decision

of the European Court can be executed only

in one way: by issuing today itself

a ruling terminating the criminal

proceedings in this case, since

nothing in the case will change, just as in

There were no signs in Officerov's actions

of the elements of a crime, so they still have not

produced the indictment that you have

in the case file. This is volume thirty-one, if

I am not mistaken. It cannot be

modified, because prosecutors

cannot do that; they cannot

alter the charges, and the court is bound by

the limits of the judicial proceedings.

Therefore, I ask you to enforce the ruling.

They have not even presented the charges yet; perhaps

they

will change them—they have the right to. If the prosecutors

drop the charges, we will only

... Then, then indeed we, we

will go our separate ways.

But you see, the point is that our position

has been stated, and I think it is clear to the court.

If the court has specific questions, I will

be happy to answer them. If you

would like to debate, please,

let's do that.

Any other questions? Other participants?

I support this

motion.

As for the indictment, in order to give my

reasoned opinion on the motion, I would need

time and, properly speaking, a copy of the motion.

I will read it.

A copy.

Take it. And one more copy for the victim

There will be one more copy so that later the same issue does not arise

for the representative

of the victim. How much more time is needed?

Half an hour. Then a recess is declared.

First

and for

how long? Listen, where are you going?

We couldn't find the link to the broadcast. Is this

a video broadcast that is being streamed on

the website, the website, the site?

Uh,

[music]

um

[music]

Well, honestly, I don't know how to entertain you.

There is not much to say. I already said all this

three years ago, so... And we

are getting dressed now. You can simply take all

those interviews I gave in

2013. Actually,

this is a rather strange

trial: all of you are bored, and all of us are

bored, and the prosecution is bored, and even the investigators are

bored, because they have already been through all this.

Exactly the same way, all those words that

will be said have, for the most part, already

been said three years ago. Only, of course,

each time we will add: and we also

won at the ECHR (European Court of Human Rights), and we have also already

proved in court that the entire process was

fabricated. Nevertheless, all of us

apparently will have to somehow

spend here, well, at least for

some amount of time for sure. What arguments do they have

to hold the trial again and

not

listen? They

are saying the same thing now as they did last

time—they said nothing, really. That is,

they will say: charges have been brought, blah blah blah,

therefore we must proceed on those charges. That is,

roughly the same thing happens at all my trials.

They say they have nothing

to add, that they have no comments,

and they keep pushing the case forward. Fine.

I understand that it is fabricated. We need, we need

to clearly

understand the main purpose of this

trial: to take away my voting rights

that have now been restored to me

for the first time in the last three years. And I

think I have no inside information,

no special intuition, no understanding of what

they want to do. But if

I look at it rationally, from the logic

of what is happening, then of course they simply

want to take away my voting rights again,

and that's all. Everyone says that

this was done specifically so that it would be given back to you,

well, maybe. But if right now

the prosecution comes in and says, 'We

are dropping the charges,' then, then

it really would look like they do not

want to do this trial over again, understanding

that afterward they will lose again. Then

we can discuss whether there is

some plan by the Kremlin

or someone else to restore those rights. But so far

there is nothing of the sort, judging by the outcome

of the proceedings, by the outcome

of the proceedings. If the charges

are not dropped now but carried forward, then

of course it will end in a guilty verdict.

There is not the slightest

doubt about that. There is no way that I

would win in the Leninsky District Court

against them the way I won at the ECHR (European Court of Human Rights); that is

out of the question.

[music]

As for established legal mechanisms, I don't know.

Maybe Olga can add something—what

mechanisms are available here to us. We have entered into

correspondence with the Committee of Ministers of the Council

of Europe, because from the outset we believe

that this judgment of the European Court has not

been implemented. And in December, as I

understand it, there will be a session of the Committee of Ministers, and

if this court does not accept our arguments today,

that is, does not grant our

motion, then accordingly we will

inform the Committee

of Ministers about it, which in fact

has the authority to monitor

compliance with judgments of the European

Court. That is the special body that

deals with this. At the same time, there is no

method of coercion; no, they will express

deep concern. Fine, the ECHR (European Court of Human Rights)...

will say: we have established that the Russian

judicial system is unfair, and that it

convicted Navalny again. Well, okay.

Did any of us doubt that? Will this be

sensational news for anyone—that the Russian judicial

system is unfair? It will not.

So again, if this case

ends in a guilty verdict, there is

not the slightest doubt that we will once again

win at the ECHR one more time.

But nevertheless, I will once again be deprived

of the right to vote for the next 3

years, as far as I

understand. So I will probably again

need help from a friend. This is a new trial.

It can end in any way at all.

As I understand it, this is a new trial.

They will read out the charges again, again there will be

witnesses and everything else. It can

end in any way, right? Well,

since the reversal was not, after all, based on

a motion by the prosecution, yes, which would have

argued that the sentence was too lenient

and so on—in that case,

of course a new hearing could

lead to a worse outcome. In our case, the situation is different.

We are here for a new

hearing in connection with the decision of the

European Court, and accordingly

there should be no worsening. I believe that, well, there

should not be.

Theoretically it could happen; legally

it is possible. In our country, anything

can happen, yes. And if the court now

reconsiders the case on the basis of the same

charge about which the European Court

said that there are no

criminal-law grounds for

bringing criminal liability, yes,

well, what can one say—anything is possible. What other options

are there? They can now send the case back to

the prosecutor's office for changes, they can

change the charges, they can return

the case to the prosecutor, they can terminate this

criminal case, yes. What, can they directly in

court simply change the article of the Criminal Code, or...

We still have not heard from the representatives of the

prosecution, yes, about what they intend to do. Maybe

they will drop the charges, and right now we will

throw a party in the courtroom

immediately. But purely theoretically, do you suppose

that he will give

testimony? Well, he was listed as a

witness, so theoretically he—well, I

don't know—should...

...use his written testimony? I don't

know; the prosecutor's office has to decide that.

As for the information that appeared in *Vedomosti* (a Russian business newspaper),

about the claim that—well, I know nothing

about that. I mean, what does it mean to give testimony

for the prosecution against me? It means

making up testimony against me. I do not

think that Belykh, even in the difficult

situation he is in, would really be ready

to give false testimony against

me. I don't

know, really.

This is the unfairness of this process, yes.

You have all pointed your cameras at me.

The only positive change is that

before, they used to shout something about children, children...

That is the only good thing that has come out of our

previous trial. But the absurdity, of course,

is still well demonstrated by the fact that they simply

dragged a person out of his

ordinary life again. He once again has to travel to

this wonderful Kirov (a city in Russia), and

once again face possible

consequences, ranging from asset seizures

and civil lawsuits to

imprisonment. It is simply unclear

why you ask about the cost of going to Kirov—how much

does it cost to travel there? Well, count it:

three people, airfare and a hotel. Well,

that is, it all added up. I am satisfied that

they paid me so, so promptly

the compensation awarded by the ECHR, but

they still owe me the 500,000-ruble fine (about 500,000 RUB)

that I

paid. Do you feel any

changes in the atmosphere compared with

then? It feels like they brought some people in from Moscow,

some of these... Last time

there was a huge number of police here,

but they were all somehow pushing people away. But even so,

it was not like now; now the police seem more to be

protecting them. They were running after me there with a

padded jacket, trying to throw it

gently over my shoulders.

And why? What was the idea? Well, on it, on the

thing, it said that the thief

belongs in prison, something along

those lines, and the police were clearly protecting them. Well, I do not

feel any—I cannot say

that I feel any particular pressure

or oppression or anything. Everything is still

quite polite in court. In general, that kind of

politeness is a distinctive feature here.

It is very different from the Moscow courts—much

more courteous, yes, yes. That is, compared

with something like the Zamoskvoretsky Court (a Moscow district court),

the Kirov court is simply

positively cultured, well, you know that perfectly well

from the working atmosphere. Everyone

is like that. They even issued accreditation for 3 years

to journalists.

All right, thank you very much. Let us

wait and see what the

[music]

prosecutor's office tells us. I...

...with Rom. And where are you?

Can you...

co...

No.

Interesting, I sent it to you on Twitter.

Right...

Can I take your...

The photo works, and those don't either.

It's working, please take a look.

No, no, no. It's just that my phone...

Why? The phone—no, the computer is turning on.

I don't know why. Do you have it? Hello, hi.

Can you read

[music]

how to?

...

the camera

oh

said that everyone is required

with

go

with

further

Alesei—Alexei—this is

posted a link saying that

[music]

were

have

yes

Sagra

please, I

exactly what you

wanted

oh

tomorrow, and she has

a power of attorney

about

ser

it is possible

will be

and

rubles

maybe, I agree, I

with

[music]

from

please, and you had no sound because

because there was... yes, they turned it off there. Uh-huh. It's just that

everyone is writing to me on Twitter; I just tapped it

they said eavesdropping is not good, right

thank you

ho

May I

here

12

in general

the practice is as follows

that unlawful use of resi...

compensation, that's all

Stas

we are updating the decision

...

still

...

members of the European Court of Hu...

of Human Rights, on February 23, 2016, it was

fully examined and studied...

of the Supreme Court, in which a decision was made

a decision on November 16, 2016, on

returning this criminal case

for judicial consideration from the stage of

trial proceedings. At the present time

the indictment has not been announced

the charges have not been presented to the defendants; those

circumstances of the crimes, uh, which

are imputed to the defendants, have not

been examined; the evidence has also not

been examined. Therefore, I believe that at

the present time, to say that

the actions of Navalny and Ofitserov

are of a civil-law nature, that they

constitute criminally punishable acts, uh

it is impossible to consider these arguments at the present time

Therefore, I ask the presiding judge

to deny this and continue consideration

of the criminal case under the procedure of Chapter Thirty-

Seven of the Criminal Procedure Code of the Russian Federation

of the Russian Federation. The court, having consulted on the spot,

I support the position of the state prosecution.

I insist on consideration

of the criminal

case. The court considers it impossible to resolve

the motion to terminate the criminal

prosecution filed by the defense before the announcement of the

charges in court and the examination

of evidence in the case, and therefore leaves it

without

consideration.

Yes, and also a motion by the defense. I

would like to hand a copy immediately to the prosecutor and

the representative

also to you

one

motion to return this

criminal case to the prosecutor to eliminate

obstacles to consideration on the merits in the city of

Kirov, in accordance with paragraph ... of part ...

Article ... the judge, upon a motion by a party or on

his own initiative, returns

the criminal case to the prosecutor to eliminate

violations committed in the drafting of

documents in violation of the requirements of this Code

which excludes the possibility of the court issuing

a verdict or making any other

decision on the basis of this

indictment. The defense believes that the criminal

case against Navalny and Ofitserov cannot

be considered on the merits in the Leninsky

District Court of the city of Kirov and is subject

to return to the prosecutor for the elimination of

obstacles to its consideration on the grounds set out below

below

Ground one: the indictment

in this case was drawn up

in violation of the requirements provided for

in part one of Article 220 of the Criminal Procedure Code of the Russian Federation, in violation of

the requirements of Articles 171 and 220 of the Criminal Procedure Code of the Russian Federation

the indictment in this

case does not contain a description of the mandatory

elements of the offense

required under Article 73

of the Criminal Procedure Code of the Russian Federation, which constitutes an irremediable

obstacle to the consideration of this

criminal case on the merits, since the court, by virtue

of the law, is not an authority

criminal prosecution and is not vested with

the authority necessary to clarify and

particularize the indictment

by virtue of the requirements of criminal law, as

embezzlement are classified such acts

which are associated with the consumption of,

expenditure of, or alienation of entrusted

property against the will of the owner for the benefit of

the guilty party or for the benefit of other persons

in the descriptive part of the indictment

page... On page 97 of the indictment

the criminal acts are described, and it states

the conclusion of the investigation that, and I quote,

quote: Opalev acted jointly with

Navalny and Ofitserov, using his

official position, out of selfish

motives, in the unlawful embezzlement of

another person's property entrusted to him

namely, the products of the KOGUP

Kirovles in the stated volume of cubic

meters for the stated amount of millions of rubles

that is, on an especially large scale, for the benefit of

third parties—that is, accomplices

in the crime—and the LLC VLK under their control

thereby causing property damage

to the owner of that property, Kirovles

that is, based on this conclusion, it follows

that Opalev transferred the property entrusted to him

for the benefit of Navalny and Ofitserov

as well as the LLC VLK under their control. However,

the stated conclusion set out in the indictment

which I have quoted verbatim

clearly contradicts the data that

the investigation considered established and

set out in the indictment when

describing the factual narrative of the act. The description in

the indictment of the act which

the investigation mistakenly considered a crime

clearly shows that Kirovles

did not

quote: Kirovles shipped to the addresses of

VLK's counterparties—this is on page 66

of the indictment

There is no data whatsoever that

the timber products were alienated

directly to VLK; in the indictment

when describing the act, there is no

such information; the indictment lacks

any indication that VLK

personally carried out any actions

to alienate

the products belonging to it, or when

describing the act in the indictment

there is not a single indication at all

including with reference to the date,

the quantity of products received,

or information about their subsequent sale

directly by LLC VLK to other persons, that

the products belonging to Kirovles

came into the possession of LLC VLK under a right of

ownership or another proprietary right

confirming the actual receipt of

these timber products specifically by LLC VLK is not

contained in the indictment

When describing the charges, there are no

indications as to what exactly

property benefit LLC VLK received

through the performance of the supply contract, and

also in connection with the shipment of

the products that belonged directly

It is also clearly contradictory

that the investigation states in the indictment

that

quote: Navalny, together with his acquaintance

Ofitserov, developed a plan to commit

the theft of Kirovles property by means of its

embezzlement in favor of the newly created

company, since in the indictment

when describing the criminal acts

it is directly

stated that the products, that is,

the property of Kirovles, mistakenly recognized

by the investigation as the subject of the theft, was immediately

shipped, that is,

alienated, and was never under their

control. Therefore, based on the cited

circumstances and the quoted excerpts from the

indictment, it is apparent

that there is an obvious

uncertainty in the

charges brought against Navalny and Ofitserov. This means

the indictment was drawn up in violation of

the requirements of part... article 17 and

part one of article 220

of the Criminal Procedure Code. Further, by virtue of criminal law, article

158, note... article 160 of the Criminal Code, as

embezzlement is classified as an act

involving the unlawful and

gratuitous alienation by a person of

the property in the criminal acts

quote: in the period from April 15 to

September 30, 2009, Opalev and Ofitserov

ensured the performance of the terms of supply contract

No.

01.29 dated

04/29 and the appendix to it, as a result of which

KOGUP Kirovles shipped

timber products

worth more than 16 million rubles to the addresses of

LLC VLK's counterparties, page 69/6

of the indictment

What is set out indicates a finding of

the fact that the supply contract was performed by its

parties, that is, by the parties who concluded it

taking into account the bilateral nature of the supply contract,

a finding that its terms were performed

[music]

means payment for the delivered

products was made

This is possible in none of the forms

of legal proceedings, including

criminal procedure

Therefore, the absence in the indictment

when describing the criminal acts

of any data on unlawful actions by

LLC VLK, while at the same time establishing the fact of performance

by the parties of the terms of the supply contract and

its appendices, clearly

indicates an obvious inconsistency

in the accusation of embezzlement of the products

which was the subject matter of the contract

performed by each of its parties

any data indicating that LLC VLK

unlawful actions with monetary funds

received from the consignees when

the description of the acts also does not contain, nor does the

indictment contain

any specific factual data

showing the infliction of

property damage on KOGUP Kirovles

in connection with the transfer of funds

by the consignee to the settlement account of LLC

VLK. At the same time, the use in the

indictment of the phrases

“the price was understated” (quote) as compared with

“the price” (also a quote) presupposes

the mandatory presence of numerical

indicators, and the absence of these

indicators in principle rules out

the possibility of establishing the fact of

underpricing or making a price comparison

of prices. However, the description of the criminal acts

unquestionably indicates the absence

in it of any specific

indications of the price of timber products. In such

circumstances, the statements in the indictment

regarding an understated price as compared

with “the price, the price” (quote) are nothing

but unsubstantiated

which the court subsequently will not be able to include in the judgment

all the more so in the judgment, when describing

the criminal acts, as an unsupported

assumption

The fact that the indictment

does not contain specific

information on the valuation of the products in

the context of equivalence, underpricing, and

so forth—and these circumstances fall within the

scope of proof in this

case under the Criminal Procedure Code of the Russian Federation—on the grounds that the

indictment, contrary to

the requirements of Article 220 of the Criminal Procedure Code of the Russian Federation, does not

contain the data specified in paragraphs 3 and 8

of Part 1 of Article 220 of the Criminal Procedure Code of the Russian Federation

Further, the absence from the indictment

in the description of the criminal

acts of data concerning the subjective element

of the offense

The acts imputed to the accused, under criminal law, as

complicity in embezzlement, may

be classified only where the acts

are associated, in particular, with

the unlawful gratuitous taking of

another’s property for selfish purposes

In the description of the acts, the indictment states that Navalny (Alexei Navalny)

committed the following

actions: the actual performance of the duties

of an adviser to the Governor

of Kirov Region on a voluntary

basis, and carrying out actions to

study and analyze the effectiveness of

the operations of Kirovles, visiting Kirovles,

obtaining information about the structure

and financial condition of Kirovles,

and becoming acquainted with

the structure of that enterprise

and the range of harvested

and processed products; the creation

and registration of LLC VLK; preparation of a contract

for the supply of timber products and appendices to it

signing those documents on behalf of LLC

VLK; concluding on behalf of VLK contracts

for the supply of timber products produced by KOGUP Kirovles

to buyers. At the same time,

the description contains no data that Navalny or Opalev were not

entitled to perform these

actions, including the registration of VLK and the contracts concluded

by that company, and in the description

of the criminal acts there is no such information. Under

such circumstances, bringing

Navalny and Opalev to liability for complicity in

embezzlement can be deemed lawful

only on one condition: the presence in the

indictment, in the description of the

criminal acts, of data confirming

that they committed the acts imputed to them

The description of the amended criminal acts does not

contain any data on the transfer

of the timber products produced by KOGUP Kirovles

for the benefit of Opalev or Navalny

or for the benefit of the LLC created by Opalev

VLK. In the description of the criminal acts there

is not a single indication that

the timber products produced by KOGUP

Kirovles became the property of VLK or

came under the control of that company

Thus, the data set out in the description of the

criminal acts do not contain

any information about the commission by

Navalny and Opalev of actions that

would have entailed the unlawful and

gratuitous transfer of it for the benefit of

VLK or for their own benefit, of the products

produced by Kirovles

The court is not entitled, when considering

the criminal case on the merits, to go beyond

the limits of the charges brought

under Article 252 of the Criminal Procedure Code of the Russian Federation, and

to independently establish elements of the

subjective element of the offense

that fall within the scope of proof under

Article 73, as well as to supplement the

indictment with

information that must necessarily be

set out in accordance with Article

220. Consequently, the absence from the

indictment of specific

data on the transfer of timber products, on the

unlawfulness of the defendants’ actions, and

so forth, is grounds for

returning the criminal case to the

prosecutor. Further, bringing Navalny

and Opalev to criminal liability for

actions

pre...

...

Accordingly, when rendering its decision, the court

must take into account the fact

that Navalny and Ofitserov are being unlawfully

subjected to criminal prosecution.

The defect in the indictment, to

which the defense draws the court’s attention in

this motion, will be difficult

to remedy because Navalny and

Ofitserov are being criminally

prosecuted for acts that are not

constitute

crimes, that is, socially dangerous culpable acts.

Under Article 14 of the Criminal Code, such acts

of the Russian Federation are not recognized as crimes,

and the indictment itself

is, for that reason,

nothing more than a product of the investigators’ imagination.

In its judgment, the European Court of Human Rights

of February 23, 2016,

in the case of Navalny and Ofitserov v. Russia,

found that, in the examination of the criminal

case against the defendants, there had been

a violation of Article 6, paragraph 1, of the Convention

for the Protection of Human Rights and Fundamental

Freedoms. Specifically, the European Court stated

that the courts found Ofitserov guilty of engaging in

activities

in commercial intermediary

activity, and the applicant Navalny of assisting

that

activity. In view of the above,

I will not quote in full

the passage from the European Court’s judgment; it

is reproduced verbatim in the motion, and moreover

it has already been cited by my

colleagues. In light of the foregoing, we come to

the conclusion that the indictment

which also formed the basis of

the prosecution in 2013

was drawn up through arbitrary

application of the law. Sending a criminal

case with such an indictment to

court for consideration on the merits

is nothing other than an attempt to hold

the defendants criminally liable

for acts that do not constitute a crime.

Consequently, the criminal prosecution of Navalny and

Ofitserov

is the result of arbitrary and

unpredictable interpretation

of the law. Thus, under these circumstances, the court

cannot consider

the present criminal case on the merits, and

the court should return the criminal case

to the prosecutor pursuant to Article 237 of the Criminal Procedure Code of the Russian Federation.

Further, the impossibility of considering

the present criminal case on the merits

separately from the criminal case against

Opalev. On October 1, 2012, from

the present criminal case, a separate

criminal proceeding was severed

in relation to the charges against Opalev in connection with

the conclusion with him of a pre-trial

cooperation agreement. From the judgment

of the Leninsky District Court of the city of Kirov

dated December 24,

it follows that he was found guilty of embezzlement,

that is, the theft of entrusted property

through abuse of official position, jointly

with others, on an especially large scale, that is,

the commission of an offense предусмотренного

by part 4 of Article 160

of the Criminal Code of the Russian Federation. The European Court of Human Rights

issued a judgment on the complaint of Navalny

and Ofitserov v. Russia, which was

published on the official website

of the European Court on 2

February.

It found a violation of the right to

a fair trial. At the same time,

the European Court noted that

the national authorities had engaged in

arbitrary application of criminal

law. Moreover, the judgment

of the European Court in this case

established a violation of the defendants’ right to

a fair trial

also because the cases against

Opalev, as well as Navalny and Ofitserov,

were considered

separately, and the judgment against

Opalev was used as evidence of the guilt

of Navalny and Ofitserov with respect to the acts imputed to them.

In particular, the European Court stated

that courts considering related

cases in separate

proceedings were clearly predisposed

to act in concert, since

any inconsistent

findings in such cases could call into question

the legal validity of two

judgments rendered by the same

court. Accordingly, in this case

the risk of mutually contradictory

judgments reduced the judges’ incentive

to establish the truth in the case and limited

their ability to administer

justice. The European Court also

agreed with the defense argument of the accused that

the wording used by the Leninsky

District Court of the city of Kirov in

its judgment against Opalev on December 24

2012 left no doubt

as to the involvement in the commission

of the crime for which

Opalev was convicted, and also of Navalny and Ofitserov. The court

in Opalev’s judgment set out its conclusions

regarding the factual circumstances

of the case and expressed its opinion on

the applicant’s involvement in the commission

of the crime in terms that

cannot be described otherwise than as

creating prejudice for the applicant’s case.

The European Court also noted that

the severance of Opalev’s case into separate proceedings,

in particular his conviction on the basis

of a cooperation agreement within

the framework of a simplified procedure.

legal proceedings

[music]

to undermine his conviction

was based on a version of events that

had been formulated by the prosecution

itself

circumstances

be supported by additional evidence with

taking the above circumstances into account, we come to the

conclusion that the consideration of the criminal

case against Navalny and Ofitserov

is impossible separately from the criminal case against

Opalev, who is identified in the indictment

as an accomplice

to the crime and in the list of persons subject

to being summoned to court as a witness for the

side of the

prosecution. It should be noted that

the ruling of the European

Court... Due to the fact that the criminal

cases against Opalev, as well as Navalny

and Ofitserov, were considered separately

this constitutes a new circumstance in relation

to the judgment that has entered into legal force

of the Leninsky District Court

of the city of Kirov, dated December 24, 2012, in

relation to Opalev, and grounds for its

reversal. Thus, the present criminal

case is subject to joinder with the criminal

case against Opalev, because their

separate consideration is impossible without

prejudice to the defendants' right to a defense and

the right to a fair trial. Moreover, taking

the above circumstances into account

the indictment's reliance on the testimony

of witness Opalev as a witness

the use of his testimony in court

is impossible in light of the above-mentioned

decision of the European Court. Otherwise

in the event of a retrial

of the present criminal case on the merits

this violation will not be remedied, but

will be even more

aggravated by what is set out in this

motion, complaint in this

motion. The circumstances

constitute lawful and sufficient grounds

for returning the criminal case

to the prosecutor in accordance with paragraph o

of part of Article 237 of the Criminal Procedure Code of the Russian Federation, on the basis

of the foregoing, guided by the requirements

of the Criminal Procedure Code of the Russian Federation, we request that the criminal case on the

charge against Navalny of committing

the crime предусмотренного under Part

3 of Article 33 and Part

4 of Article 160 of the Criminal Code of the Russian Federation, as well as

the charge against Ofitserov

of committing the crime provided for

under Part 5 of Article 33 and Part

4 of Article 160 of the Criminal Code, be returned

to the Deputy Prosecutor General

of the Russian Federation for the elimination of

obstacles to its consideration by the court. Dated

December 5, 2016, contains

the signatures of the defendants and their defense counsel

Please hand it over

please. Members of the defense, do we support it?

Do we support it? I do.

part

to say, under paragraph 1 of part 1 of arti-

Article 237. The court

shall return

the case if there are obstacles to its consideration

by the court if the indictment

has been drawn up in violation of the requirements

of this Code, which excludes the possibility

of the court rendering a judgment or

issuing another decision on the basis

of this indictment. In the opinion

of the state prosecution, such

grounds do not exist. In the charges with

which the defendants were familiarized

the amount is clearly and unambiguously stated

of the material damage caused by the crime

and there are no contradictions in

stating the amount of the damage. There is no

violation of paragraph 8 of part 1

of Article 220 of the Criminal Procedure Code in drawing up

the indictment. Nor was there any in

the indictment, which sets out

the evidence of both the prosecution and

the evidence relied upon by

the defense. In addition, the current

criminal procedure legislation

does not prohibit the defense from

relying, in support of its arguments, on

evidence collected by the bodies of

preliminary investigation and

set out in the indictment

as prosecution evidence, and also

to present new evidence, in

connection with which no violation of paragraph 6

of part 1 of Article 220 was committed in drawing up

the indictment

The defense's arguments that in the

indictment there is no indication of

information about where, when, and under what

circumstances Navalny entered into

a criminal conspiracy with Ofitserov and

it is not specified exactly how the role

of Navalny as the organizer of the crime was expressed

are also, in our view, unfounded. In

accordance with paragraph 3 of part

1 of Article 220, in the indictment

there must be indicated the substance

of the charge, the place and time of commission

of the crime, its methods and motives

its aims, consequences, and other circumstances

relevant to this criminal

case. All these circumstances are set out in the

indictment in a sufficiently specific form

to the extent established by the investigation

Moreover, in our view, it is

also premature, as is the defense's argument

for returning the criminal case under

Article 237 of the Code. Due to the fact that

by the European Court of Human Rights

the actions of the defendants

it was recognized that the actions had

a civil-law nature and

contained all the elements of a criminally

punishable

act. At present, the criminal

case, this criminal case, however,

by a ruling of the Presidium of the Supreme Court

of the Russian Federation from November 16, 2016,

was sent for consideration from the stage of

trial proceedings. The indictment

is not to be read out; the circumstances

of the alleged crime are being imputed.

In addition, the case against Opol was

justifiably severed from this

criminal case and considered by the court

under a special procedure due

to the conclusion with him of a pre-trial

agreement, that is, in accordance, in

full compliance, with national

legislation, Chapter 40.1.

At present, taking into account

there are no circumstances that would preclude

the possibility of the court issuing

a verdict or rendering another decision on

the basis of the indictment prepared in the case

.

[music]

I support the position

of the state. Your Honor, please,

forgive me, please, but I

have the impression that

state prosecutor Bogdanov has just now

analyzed and expressed a position not

on—first of all, in my motion there was no

mention, as grounds for returning

the case to the prosecutor, of a reference to paragraph 6

of Article 220, Part 1 of Article 220 of the Criminal Procedure Code

of the Russian Federation. If the prosecution

carefully looks at my motion, it will not find

that information there. Moreover, I did not

state in my motion, when substantiating

the need to return the case to the prosecutor,

that the indictment does not

specify the time, place, and method of commission

of the crime. That was not stated in

this motion; entirely different

grounds were presented for returning

the criminal case to the prosecutor. As I understand it,

prosecutor Bogdanov prepared for the hearing and

took into account the motion

to return the criminal case to the prosecutor

that we filed in April 2013

during the first consideration of this

case. Therefore, I would still ask

the prosecution to show some respect

for what the defense

is saying and to take a timeout

to carefully read the motion

that we have just submitted and express

a reasoned position, because what

the prosecution has just presented to us is not

so to speak, a statement on

the motion, an expression of position on

the motion, because they expressed that

position on the motion that

was not submitted at this hearing.

Moreover, we did not say that

the criminal case should be

returned to the prosecutor on the basis of the judgment

of the European Court of Human Rights in

the case of Navalny and Ofitserov. We cited

that judgment, saying that

in principle, Ofitserov and Navalny

are being unlawfully subjected to criminal

liability, but we did not, in

the motion that I have just

presented, say

that on the basis of that judgment

the case must be returned to the prosecutor. Please,

prosecution,

read it carefully and please state

an adequate, balanced

position, because we prepare for the proceedings

and would like to see the same

kind of conduct from

you.

[music]

but this is reflected in the conclusions, uh

we also find this argument to be reasoned and verified

in our view, and moreover, the defense's statement

that the references to the judgment

of the European Court of Human Rights

for returning the case also seems to me not

well-founded, since I saw and heard

that

those excerpts from the judgment, yes,

will be read out by the defense, therefore

I believe that in this case a reasoned

conclusion has been prepared

.

Your Honor, may I

say something? It is simply perfectly clear to me from here

that prosecutor Bogdanov read out

a printed text. That printed text could only have been

prepared before the hearing, and

our motion the prosecutors heard and

read only just now, so this

text could not have been prepared as a

response to the motion we submitted, because

when it was being prepared, there was no motion yet.

What does this affect?

It means that they have now stated a position on the

motion that was submitted back in 2013

and not the one submitted today, and they

differ from each other; textually

they are completely different, and the grounds there are

different. To oblige them to state some kind of—well, I

then ask the court to take into account that the prosecutors did not

have a position on the merits regarding the motion

that we

submitted.

Then the court will retire to the deliberation

room, approximately until 3:15 p.m.

Everyone, we reconvene at 3:15 p.m.

at 3:15 p.m.

We reconvene.

That is what was said.

he

really after 4

o'clock, let's go

then

la

or if 15, then this is

night from pro

about

Let's go now

we'll go, all right

come on

really to pee ti

image paper

I will read

I read it, and somewhere?

Russia, why are you without

squares, the very beginning of this

process

won in the European Court of Human Rights

and showed that the first case

and that criminal law existed, but

it is impossible to act arbitrarily, the process

then the highest instance of the Russian

judicial system, the Presidium, agreed with

this, and after sending the case back, it should have

happened. Just a formal— from, I should

there should be a process and the process should be terminated

the human rights court clearly decided everything

that's quite strange

and

and

with

with