Text version
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under Article 33 and Part 4 of Article 160 of the Criminal Code of the Russian Federation
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of the Russian Federation, accusing Pyotr Yuryevich Kater of committing
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the crime provided for in Part 5
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of the Article
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of Article 160 of the Criminal Code of the Russian Federation, Gena and his defense counsel established that
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this was not presented by the prosecutor at all
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on the following grounds
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there are contradictions, and the description
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lacks a description of the objective elements
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of the crime, namely, it lacks
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confirmation that the acts in question were committed for
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appropriation for their own benefit
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Green. In order to
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explain, the indictment contains
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an interpretation
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that makes the alleged offense indistinguishable from ordinary
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business activity
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criminal liability that is politically
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motivated; the defense believes
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that it is impossible to consider the criminal case
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in relation to it
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separately from the criminal case concerning
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which presupposes the need for their
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consolidation into a single proceeding
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the prosecution repeated the previously stated
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motion, considering it unfounded
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and supported the opinion of the other party
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Having heard the parties, the court comes to the following
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under Part 1 of Article 237 of the Criminal Procedure Code of the Russian Federation and
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on the initiative of a party or on its own
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initiative, the court may resolve
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to return the criminal case to the prosecutor if there are obstacles
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to its consideration by the court, if the indictment
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or bill of indictment was drawn up
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in violation of the requirements of the Criminal Procedure Code, such that
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this excludes the possibility of delivering a judgment or issuing another decision on
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the basis of that indictment
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In criminal cases, the grounds set out below
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in the defense's arguments
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do not exclude consideration of the criminal case
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as complying with the requirements of Article 220 of the
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Russian Federation
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namely, it sets out all the factual circumstances
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of the act and other circumstances having
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significance for this criminal case, including
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a clear indication of
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the relevant provision of the Russian Federation
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that provides for liability for the given
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crime, and a list of the evidence on which
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Unfortunately, despite the grounds on which
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the defense believes there is no possibility
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to proceed
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the evidence specifically relied on
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by the prosecution indicates
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the lawful nature of the acts, that is, that they were within the framework of
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ordinary business activity
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the political motivation of the criminal
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prosecution of Navalny. In addition, here
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given that Article 14 of the Criminal Procedure Code exists
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the obligation to assess the arguments
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presented by the parties lies with
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the prosecution, and all amendments
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to the indictment contain statements
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of an alleged
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allegedly misappropriated property
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purchased from Kirovles, its value, and what
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contradictions and indications are contained in the indictment
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as to the amount of damage caused, in violation of
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Clause 8, Part 1, Article 220, which
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There was also
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under Russian law, Chapter 40.1 of the Criminal Procedure Code
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which provides for the possibility
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of concluding a cooperation agreement
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with suspects and
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the subsequent separation of the criminal
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case in relation to the given person
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It is also not entirely clear whether the adoption of a judicial
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decision by the European Court of Human Rights
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also concerns the agreement
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as an element of the European criminal justice system
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and what effect the separated proceedings had
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on the case relations, in essence, does not
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exclude them
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Given that the court has not established here
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circumstances that would exclude
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the possibility of the court delivering
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a judgment or issuing another decision on the basis
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of the prepared indictments
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the motions of the defendants and defense counsel
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to return the criminal case to the prosecutor
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must be denied for the reasons set out above
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guided by Articles 237, 256, and 271
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the court rules to deny the said
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motions of Navalny and Ofitserov
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and their defense counsel, attorneys Nikolai Kobzov
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and Davydova, to return the criminal case
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to the prosecutor pursuant to Article 237 of the Criminal Procedure Code
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please
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[music]
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Motion for recusal. On December 5, 2016,
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Judge Tyurina of the Leninsky District Court of the city of
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Kirov
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denied Navalny and Ofitserov's motion to terminate
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the present criminal case and the criminal
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prosecution of the defendants for the purpose of enforcing
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the judgment of the European Court of Human Rights dated
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February 23, 2016. On that same day, the judge
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also indicated to the defense
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the possibility of filing a motion to return
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the criminal case to the prosecutor. By these
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actions, Judge Tyurina placed
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the defense in circumstances in which it was necessary
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to defend itself once again against the same
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vague, contradictory, contrived
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and politically motivated accusation
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The charges were formulated as a result of
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what, as shown not by a Russian court but by
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an arbitrary and unforeseeable
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interpretation of criminal law, namely accusations of
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committing acts which, as the
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European Court indicated, were indistinguishable from
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ordinary commercial activity
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The court's handling of these criminal cases
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position
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undermines the court's independence. Thus, even before
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the start of the judicial examination, the court displayed
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its interest in the outcome of this
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case and demonstrated that the parties would not
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equal
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procedural opportunities will be provided, and the court will not
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be fair. We believe that such a
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position
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indicates that the court had formed in advance
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before the start of the judicial examination
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an opinion about the defendants' guilt; the adoption
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by the judge of an accusatory position, as
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a consequence, deprives him of objectivity and
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impartiality as a judge.
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The defense believes that the demonstrated
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lack of objectivity and impartiality
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of Judge Nikitin directly follows, among other things,
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from the fact that he is in official
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subordination to Blinov, who previously
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considered this criminal case
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and who, during its earlier consideration,
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clearly demonstrated a lack of objectivity and
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impartiality, as well as an interest
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in its outcome, having previously delivered in
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this case a guilty verdict
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and sentenced Navalny
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to actual deprivation of liberty
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and took them into custody in the courtroom. Judge
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Blinov, whose verdict was later overturned by the Supreme Court
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of the Russian Federation on
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the basis of the judgment of the European Court
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which found a violation
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of the Convention for the Protection of Human Rights and
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Fundamental Freedoms, that is, he is
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in official subordination to Judge Blinov,
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who, in order to restore his
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reputation and personal authority,
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more than anyone else is interested in a repeated
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issuance in this case of a guilty
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verdict.
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The defense notes that since Blinov is
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the deputy chair of the Leninsky
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District Court of the city of Kirov, under
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Part 4 of Article 35
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of the Federal Constitutional Law on Courts
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of General Jurisdiction in the Russian
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Federation
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and Part 2 of Article 6.2 of the Law
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of the Russian Federation on the Status of Judges of the Russian
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Federation, the deputy chair
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of a district court, alongside exercising
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the powers of a judge, also exercises powers
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to organize the work of the court in
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accordance with the distribution
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of duties established by the chair
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of the district court.
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According to the instructions on court record-keeping
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in a district court, the court's internal
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rules, and other
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acts that regulate in detail the work
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of the Leninsky District Court of the city of Kirov,
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the deputy chair of the court has
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broad powers with respect to
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the judges of the court; that is, by virtue of the position he holds,
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Blinov can
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directly as well as indirectly
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influence the federal judge.
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As the European Court indicated in paragraph 116
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of its judgment, the national courts did not even
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take care to observe the outward appearances
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of propriety, and the transfer of the criminal
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case for reconsideration to Judge Nikitin,
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who is in official dependence
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on the judge who issued the first unlawful verdict,
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regardless of how that dependence is characterized,
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is nothing other than cynical
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mockery of justice. Thus,
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thus, already now one may
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state
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or, to put it more vividly, as Vladimir Putin once said,
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the sad fact—the sad fact that at
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the present time, in the repeated
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consideration of the case, there can be no talk of
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the court observing even the outward appearances of propriety.
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Part 1 of Article 120 of the Constitution
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guarantees that judges are independent
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and are subject only to the Constitution
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of the Russian Federation and federal law.
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Judicial independence includes
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impartiality. Part 4 of Article 15
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of the Constitution guarantees that the universally recognized
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principles and norms of international law
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and the international treaties of the Russian Federation are
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an integral part of its legal system.
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The principles of independence and impartiality of the court
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and unhindered access to justice
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are recognized by the international community as
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fundamental. According to Article
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10 of the Universal Declaration of Human Rights,
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everyone, for the determination
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of the validity of any criminal
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charge against them, has the right, in full
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equality, to have their case
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heard publicly and with full observance of all
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the requirements of fairness by an independent
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and impartial tribunal.
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Developing these provisions, the Convention for the Protection
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of Human Rights and Fundamental Freedoms, paragraph
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1 of Article 6, and the International Covenant on
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Civil and Political Rights, Article
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14, establish that everyone has
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the right, when charged with a criminal
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offense, to a fair and public
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hearing within a reasonable time
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by an independent and impartial
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tribunal established by
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law, with observance of the principles
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of equality of all before the courts. However, in this
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criminal case, all
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the above requirements of Russian
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and international legal instruments, as well as
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the legal positions of the Constitutional Court
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and the European Court of Human Rights, were
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ignored by the judge. The position taken
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by the judge of the Leninsky District Court of the city
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of Kirov, Nikitin, indicates that
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he is not free from outside influence,
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is not independent, impartial,
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or objective, and is incapable, when issuing
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judicial decisions, of being guided
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solely and exclusively by the law. On the basis
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of the foregoing, guided by Part 1
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Article 61, Article 62
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Article 64 of the Criminal Code
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we are filing a motion to recuse the federal judge
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of the Leninsky District Court of the city of Kirov
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from prison on December 5, signed by Navalny
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Mikhail
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[music]
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I wanted to add that as soon as you walk in
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to the wonderful building of the Leninsky Court and
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look to the left, it immediately becomes clear
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what the grounds for recusal are, because Judge Blinov
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is directly listed there as the deputy
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chairman of the court, and he is your
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direct superior, and our
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attitude toward this court is based, once again,
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on a court ruling where this is not
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a poetic or political statement
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— it is stated directly in the court ruling
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that the authorities did not even bother
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to create even the appearance of a fair
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trial
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that is the main thing underlying our
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attitude toward Blinov; in this connection, we
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have submitted a criminal complaint
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against Blinov; we consider him a criminal
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and in five years, in ten years
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under this regime or the next one
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he will one hundred percent end up in the dock
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as a defendant, and
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even if he were transferred somewhere back to
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a district court or somewhere else, in any case
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since he is now your formal
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direct superior, of course we
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are filing this motion, and we believe this case cannot
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be fair when, well, here we have
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a person whom we believe should be in prison
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— naturally, he will do everything
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to conceal the traces of his criminal
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acts, and since your
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direct superior — that is the point
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these are the grounds
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What grounds have been set out
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First of all, I would like to note that
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the grounds
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are governed by the criminal procedure legislation
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of the Russian Federation, namely Part 2 of Article 61
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of the Criminal Procedure Code; it states that
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under the specified grounds, it may be considered that
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someone may not participate in
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criminal proceedings if he or she
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is a victim, civil plaintiff,
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civil defendant, or witness in
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the given criminal case, or has participated in it
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in the capacity of
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an expert or specialist
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a victim, civil plaintiff
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civil defendant
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or another participant in the proceedings
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in this case, or if there are
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other circumstances in these proceedings
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also, in the event that
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there are circumstances giving reason to believe that he
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is personally, directly interested
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in the outcome
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the defense is forced to point this out because they
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have allowed, in repeated proceedings,
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consideration of the case
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the circumstances indicating
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as the defense has pointed out, a lack of
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independence and impartiality, and
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these are not baseless or unsubstantiated
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claims; therefore
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I have a notice from the Moscow District
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Military Court
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it is impossible to hold the hearing tomorrow
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just a second
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[music]
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[music]
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we will be in session every day from 9 to 6, and
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he ran off somewhere — which speaks to the fact, to the fact
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that what I am talking about is this:
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the goal here is to hand down new verdicts as quickly as possible
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and strip me of my electoral rights
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tomorrow the trial will not
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take place — he knows that perfectly well, because
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lawyer Mikhailova must
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be present in the Nemtsov case, where
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there is a jury, and a higher court is involved. And besides,
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those of you who have attended trials
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of this kind know that even despite
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their obvious political
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and orchestrated nature, judges are always
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interested in putting together, well,
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a more or less convenient schedule, yes, when all
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the lawyers can be present. Here we
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simply see that everything is aimed at
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not caring — we will hear the case every day, and
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there is no doubt that they intend
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to hand down a verdict again, practically this year
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and this brief
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opportunity that appeared thanks to my electoral
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rights will be taken away from me
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and you yourselves will
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the lawyers
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my lawyers, with whom I went through the entire
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case, with whom I won at the ECHR (European Court of Human Rights), with whom
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I won in the Supreme Court, will not be here
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so what is the point of my appearing here
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when they are not here
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first of all, I myself have cases to deal with. Well, yes
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fine, my own affairs — all right, I am the defendant. But
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if, uh, my lawyers quite clearly have
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a summons to the district court tomorrow, yes
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I mean the District Military Court, where
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the hearing in the Nemtsov case will take place — then what is the point
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of staying here? The hearing will in any case
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be adjourned tomorrow due to the absence
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of the lawyers; that is obvious
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I am absolutely certain
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he knows that all of us have our own cases
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the fact that today's court hearing was scheduled
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only became known not long ago. We
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again are not to blame for the fact that
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the Leninsky District Court of the city of Kirov
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cannot issue
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a fair decision on the first try, accordingly
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we ended up here entirely by chance
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in fact, because on November 16 there was
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The verdict was overturned; naturally, we have
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scheduling conflicts, and any reasonable judge would have worked with us
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and agreed on another date for the court
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hearing, if they truly wanted to avoid conflicts in
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this situation. It turned out this way
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as it did; we were simply presented with it
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as a fait accompli. They absolutely do not
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care that I am occupied with another
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trial, a very important one, related to
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the murder of Boris Yefimovich Nemtsov (a prominent Russian opposition politician), in
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which I am required to be present. I have
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documents from that court confirming
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that I must be there tomorrow, but this court
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is not interested in that at all.
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I just want to emphasize once again
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that we are here not because we
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wanted to be or because it is our fault. We are here because
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it has been established by the Supreme Court that
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this very Leninsky District Court
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issued an unjust ruling. That is why we are
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here, and there is certainly no kind of
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urgency or need to rush. This case was
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resolved three years ago; there are no
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reasons why the judge should now
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be pushing this process forward right now. Well,
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except for what I have already mentioned.
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Nevertheless, without my lawyers I will be
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simply deprived of my right to a defense, so
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of course I refuse to take part
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in hearings without my defense counsel.
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Thank you.
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As for compensation, of course, regarding the money, I have
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already been paid... no, we've already... your microphone was taken away.
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The microphone was being taken away. Thank you very much. Yes, and
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the ECHR (European Court of Human Rights) awarded me compensation;
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that compensation has already been paid to me. Also,
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the Leninsky Court still owes me 500,000 rubles
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in fines that were upheld. Thank you.
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You too.
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[music]
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[music]
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[music]
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I think these are standing instructions, so
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who knows what role each person has there
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on a human level in the process; a process is
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a process.
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There is no doubt that it has become
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—you have seen how all of this happens—
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that there is some kind of Kremlin game at work.
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If there is a Kremlin game, then in any
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case it means a worsening of the situation, both for me and
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for anyone involved in politics.
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To expect them to make life easier for us
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despite the fact that I have already been told
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a million times that we won this case, still
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nevertheless.
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[music]
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