Retrial of the “Kirovles Case.” Court video recording. Hearing 11. Part 1

Attorney Mikhalova Olga Olegovna.

Attorney Davidova Svetlana Viktorovna.

Attorney Kobzev Vadim Dmitrievich, the court does not...

temporarily... the reason was not...

To be clear, no one brought me here by compulsory escort. I

came on my own, bought a ticket before

the order for compulsory escort was issued,

came here to

court on my own, checked myself into a hotel in Kirov,

so I asked, please...

Please stand up. Excuse me, I have

a clarification as well, in turn. And I believe

that materially, our client Ofitserov

was not brought in by escort. For three years he has

bought his own ticket and came to

Kirov on his own. We were not accompanied by court

bailiffs, neither in Moscow nor in Kirov. I ask

that this be noted and that my

corresponding statement be entered into the record

of the court hearing. Moreover,

the court order stating that Ofitserov

was to be brought in by compulsory escort

was... and there are no notes indicating

that it was even served on Ofitserov. I

think

likewise, there is no indication that it was served on me

as defense counsel. Besides, to say that

the reason for Abzov's failure to appear is unknown to the court

is also incorrect, since there was

notice to the court that today he has

a court hearing at the Tverskoy

District Court of Moscow, and the court was also

notified by us as early as Sunday that

on February 1 neither I nor P.S.V. can

appear here, because I have a case at the Moscow

District Military Court. The case

is being heard by a jury in the Nemtsov murder case

of Nemtsov, and Kozevskaya has

a court hearing on the possibility of...

a criminal case under the existing... I believe

possible... does anyone wish to...

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hearing, criminal case under

the existing

appearance

I would like to receive the documents

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confirming accordingly

three VK thirty

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first

we begin with what is visible

Officer, I notified you on January 29, 2011

by telegram; the telegram to the court

was delivered, stating that my client

Ofitserov, Pyotr Yuryevich, was feeling

unwell. An ambulance was called for him on

Friday; the relevant information, respected

from the ambulance service; data about this also

is in my notice dated January 26, 2017

there the full name and address are indicated

the address. Further, I would like to draw attention

here to the fact that on January 30, Mr. Ofitserov

was hospitalized for reasons unknown to me

and on January 31 was discharged early

and

if suddenly Mr. Ofi needs a break

during the court hearing, I ask that it

be announced. That is, I am prepared to provide the court

for review, not for

inclusion in the case file, exclusively for

review, the original discharge summary and

its

copies. As for

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me, for my part I also sought

medical assistance

on January 27

2017

and can accordingly provide for

review

a copy of the route sheet confirming

that I was

consulted by a cardiologist and

a general practitioner, and

accordingly, receipts showing

the exact time

of the consultation, and I am ready to provide for

the court's review

a medical opinion stating that on the 30th

of January I also visited

a doctor; my next visit was scheduled for February 2

2017, and accordingly on February 2

the sick leave may be closed

if I feel well and

accordingly if I do not violate

the conditions. For

review, I do not consider it necessary to submit them to the case file

since these documents contain

personal

data. I also do not consider it possible

to disclose them to the parti-

for

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But not

for, well, accordingly, about

the visit

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my

now for

now

I am not doing

page

not the first page, but the second to last

page

medical opinion

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Well

accordingly

Well, accordingly, here

and here is

2

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I wanted to submit the notice that

was sent by me, as counsel

on Sunday to the court by email

original

I have the original certificates, but

not

all of them by email. Here is another

original

was also received

in January of seventeen

year

The note says today, January 29

2017. It was

presented to Ofi-

you did not allow

year

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syste-

part

year, I ask you for his rights

hearing

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your

for now

since a public person

undertook

to present supporting

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parti-

in the area of conducting

relevant social

actions

execution of the investigation of Russia

I submit a request for the conduct of

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hearing, except this

is being set

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this present doc-

per year

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the issue of notification is being decided

there is no data

wait

regarding email notification to

the website here contains points stating that inclusion

a received email is considered

proper according to the references, regulations, instructions

proceedings Your Honor, we could not

send by

fax on Sunday at 23:28 (11:28 p.m.); in the end we

sent it by email because

the fax machine at the Leninsky District Court was not working

we spent several hours in order to

still send this fax, but we

did not manage anything

succeeded; moreover, on January 27, from

your assistant I received an oral

notification that in the correctional

penal colony No. 18 in the Yamalo-Nenets Autonomous Okrug (a federal district in northern Russia)

a quarantine had been declared; after that my intern

my intern received by email

an email from your assistant

containing, accordingly, a copy of a letter

but I was not there at the court

hearing when it was announced; the copy of the letter

is addressed to Mr. Tyurin and signed by

the head of IK-18 of the Federal Penitentiary Service of Russia, stating that

that at present a quarantine has been declared in IK-1

a quarantine; I would like to review

the relevant request from the Leninsky

District Court addressed to IK-18, since

as follows from this letter signed by

the head

of IK-18, this message to the court

was, accordingly, in response to some

request; therefore I ask to be allowed to review it

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I do not think that suddenly

the head of the colony would start notifying

the court about this on his own initiative

court

Moreover, I personally spoke by phone with

the head of IK-1. He confirmed that a request

from the court had been made, specifically for January 21

2017

year

not

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[music]

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we move on to the evidence. Your Honor, please, I

have a brief remark. I would like

it to be entered into the record. I

believe that what is happening now around

the court bears clear signs of a crime

provided for by the Criminal Code. You

know perfectly well what crime this is:

obstruction of the administration of

justice; the wording of the provision

provides that this is interference in

the court’s activities in any form. What

we are seeing is pure interference

Excuse me, but no one—in a situation where

courts all across Russia are canceling hearings

specifically involving our lawyers, and heads

of penal colonies voluntarily send you letters

and a lawyer who is on sick leave

is summoned and forcibly driven out of

the hospital

and a hospitalized defendant who

is not even subject to any

measure of restraint—Your Honor, this is

interference being carried out by

persons unknown to me. I do not understand why

you tolerate this interference. I would like

once again to draw the court’s attention to the fact that

we are here for one reason only

and that reason is that we won

the previous Kirovles case, proving that

the trial did not comply with the standards of

justice and had a political motive, and

the Supreme Court of Russia agreed with us on this

—its Presidium (the court’s governing panel). Therefore we are here

entirely voluntarily, and until the end of the trial we

have at most three hearings left

and I find the measures you are applying

completely unnecessary. The measures that

are also being applied by some unidentified

persons, by courts all over the country, and whoever there

is orchestrating them—they too are entirely unnecessary

Well, I come to the proceedings voluntarily, yet

a whole bunch of bailiffs are running around after me in Moscow

five people escorted me yesterday to

a flight for which I had quite voluntarily

bought a ticket. What is all this for? I mean

these are simply signs of some kind of

strange reg

control over the trial, so I would ask you that

next time, when

someone tries to give some

unlawful instructions or orders, or

otherwise interfere with the course of this

trial, you inform those citizens that

Navalny and Ofitserov are very unhappy about it

and that all these things will sooner or later

be investigated. Thank you

very much

further investigation; this is an order of the rector

of the Department of State

Property dated 10/2009 No. 526 on

initiative

of financial and economic indicators

of the activities of ses

regional as well as asset liquidity

for the use of credit resources

it is necessary to conduct an initiative audit

the activities of that ... and its future prospects

to approve in 2019

terms of reference for conducting

the initiative ... attached

the department of state enterprises

institutions was instructed to arrange the conclusion

of a contract with an auditing organization for

conducting an audit; the audit report

of the audit was to be submitted by July 23, 2009

oversight is assigned to the acting

deputy director performing the duties

of the state enterprise/institution

Perm ... signed ...

agreed upon

by employees of the department

of state property; also, with regard to

this matter, there is an approved

terms of reference for conducting

an initiative audit of Kirovles, which

contains the following points concerning the need for

conducting a comparative analysis

of the enterprise's activities for the first

half of the year, although the second quarter is indicated

based on the submitted preliminary accounting data for

the closing of 2009 and 2008; an analysis

of the enterprise's performance ...

of state powers; an analysis of ...

of the enterprise's policy; followed by an analysis

of concluded contracts and the effectiveness

of their impact on financial activities

of the enterprise; analysis ... under point five

of the order; analysis of the registration of rights to property

of the state enterprise

registration ... continuation

of this contract

No. 9 dated July 14, 2009

accordingly, yes

in general ... what

the customer ...

of the enterprise in accordance with the terms of reference

assignment

... by the customer; the result of carrying out

the time for performance of the work was set

until the 23rd of ... 2009, and in clause four

of this agreement, the cost of the services is stated

and the payment procedure, namely, it

amounts to 75,000 rubles (about 75,000 Russian rubles); the customer makes

payment to the contractor within ... after signing

the acceptance certificate ... these were submitted

accordingly, on the contractor's side

they were signed by the director of the center

for management consulting ...

on the customer's side

by the director of the ... region

and what exactly are they supposed to confirm?

the document does not state that; in our view

it confirms that the conclusion of the contract

with the contractor was directly ...

by the Department of State

Property, since the defense

during the audit review stated that

that this was concluded without proper grounds

in violation of lawful procedures, therefore we

will assess this fact, and it

must be attached in order to

directly avoid stating that

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procedure

please, while Davydov's defense counsel

reviews it, I will say that I am also familiar with it

I object. I would even like to say that

it should probably be phrased that you and I

Your Honor, object, because I expect

that you will support me. After all, here we

questioned the auditor's representative, and he

here in sworn testimony before the court record

stated—she stated—that the terms of reference

had been changed; that was said, wasn't it?

that a new terms of reference

had been formulated orally. That was said, wasn't it?

There is no document anywhere concerning

the new terms of reference, so, well,

what is there to admit into evidence? That is, this is simply

some unclear piece of paper that has no

terms of reference, so there is nothing to admit

into evidence. Let us firmly

say no to the prosecution's

representative

uh

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on

G

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uh

I object to the admission of this

document. First, I draw your

attention to the fact that these

documents concern matters that

do not fall within the subject of proof in

this criminal case. We fully

understand that the subject of proof includes

circumstances indicating whether

a crime was committed, the time, place,

method of committing the crime, and the circum

... of the objective and subjective aspects of the offense

of the crime. Further, I would like to draw

attention to the fact that, when speaking

about the need to admit these

documents into the case file, the prosecution

does not say from what source they

were obtained. In particular, it seems to me

that if a party is presenting merely copies

and, moreover, the copies are certified with the seal

of the Kirov Region Prosecutor's Office, then

I would like to see the document on the basis of

which, exactly, this was done

that is, the request: by whom, when, under whose signature, and to

which institution it was addressed

and whether it was properly issued to obtain

the relevant certified copies of

documents. If an organization

issues copies of requested documents, it

certifies their authenticity with its own seal and

the signature of the head of the organization

Here we see that the copies are certified

with the prosecutor's office seal and bear the signature

of an unidentified official, since

there is no printed clarification of the signature. I believe

that in this case, the objection concerns

the procedural formalization of these

documents, which rules out the possibility

of using them as evidence

of anything in this criminal case. I

would like to draw the court’s attention to the fact that

the Criminal Procedure Code contains

different requirements with respect to

the prosecution and the defense as to how and in what manner

evidence must be submitted

and, accordingly, how it

must be documented.

I remind the prosecution that

the legislature is stricter with them, and

accordingly, if they want

to use something as evidence,

they must confirm the source

of origin and, accordingly,

confirm that the document is

at least a genuine copy.

Here, we have grounds

to believe that the prosecution has not

provided any data as to when, from where,

these documents were requested, by whom, when

they were submitted, and why they do not contain

certification,

namely the seal and signature of the

official who issued them. I

believe that this cannot be used

at all as evidence of anything.

Further, frankly, I do not understand

the motivation behind this motion; I do not understand

what the prosecution intends to prove

by submitting these materials and

what exactly they need them for.

They said that supposedly the defense

said something there, asked questions

to auditor Zagoskina. Yes, I remember perfectly well

that Zagoskina confirmed that she

worked, first of all, under different

technical specifications, which had been changed on

an oral instruction from

the manager. In this connection, I also want

to note that the prosecution refers to the fact

that these papers were allegedly submitted by the

regional department. Again, we do not

see any data

confirming this.

And as for, again, the substantive

content of these papers, I also do not see

any grounds to pay attention to them or

to treat them as evidence. And

since, again, we will assess the testimony

of Zagoskina indeed

from the standpoint of reliability, but also from

the standpoint of admissibility, and we will

speak about whether what was said

proves anything or not, the fact that

the defense asked a question does not mean that now

the prosecution can attempt to verify

witness Zagoskina’s testimony in this

respect. Well, in fact, nothing prevents them from

calling Zagoskina again and asking her

an additional question, so we

naturally object to the inclusion

of these materials.

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Motion.

As for the documents, to clarify further, they

came directly from the Ministry

of State Property,

which in principle has the right to carry out this

and to submit evidence in the proceedings. As for

the significance and motivation for submitting

these materials in the criminal case, to clarify,

it may not be entirely clear, but its significance lies

in the fact that when this

agreement was concluded, a sham procedure was used, that

this was done for the purpose of

breaking the contractual relationship with the company,

and this was done by prior collusion

directly with her. Therefore, in this

case, we insist

that it is necessary

for the purposes of the criminal case itself

in order to compare the cost of the services

and subsequently reach a conclusion.

The defense side will present its conclusions on the entire matter.

Understood.

Understood.

The contract, the law, and the applicable legislation

to which this can be tied

must be considered.

If I may, in connection with what you

have said, Cheremis, I have an additional point.

The prosecutor’s office is now asserting that

as to the source of origin—yes, regarding the source—

these copies were made from

the original documents in the

department

of property. What interests me is who, when, under

what circumstances, and on what basis

made these copies. Why are these copies certified

not with the seal of the property department but

with the seal

of the prosecutor’s office? In that case, let us

look at the original documents. This is

exclusively a procedural

issue. Yes, if someone verified

the conformity of the original and the copy, then we

are speaking exclusively about procedural

aspects. I will not even now

touch on the relevance of these

documents. The Criminal Procedure

Code sets out the procedure for collecting and recording

evidence; it speaks about the

requirements that the legislature

imposes specifically on the

prosecution. If even a lawyer

is under an obligation, if we

attach some document and ask that it

be examined as evidence,

to provide the court with the lawyer’s request, that is,

when it was sent and to whom it was addressed, then

I find it very strange that the prosecutor’s office does not

know these things, or is deliberately

hiding something from us. I believe, I...

I insist that in the form in which we have these

papers, I cannot even say that

this is a document.

And to add them to the case file, let alone

use them as evidence,

or examine them as evidence,

is impermissible. Here, the procedural

procedure for collecting and recording

evidence has been violated. Your Honor, these are not

documents.

The documents for

that

there are

are

also other documents, namely a request

from the regional test bureau

regarding Navalny, Anatolyevich (patronymic-based formal naming), in

accordance with which he

on December 30, 2014, was convicted under

the Moscow District Court of the city of Moscow under

Articles 159.4 part 4 and 159.4 part

two, and 174.1 part two, paragraph a,

and 169 part two of the Criminal

Code of the Russian Federation, and was sentenced

to imprisonment conditionally for a term of 3 years and 6 months, with

a probationary period of 5 years. It also states

that in 2015... According

to this same request, there is also a decision on

review dated 2015, concerning

administrative liability, and also

a criminal record inquiry from the Ministry of Internal Affairs and the relevant MVD information center

of Russia regarding officer Petr Revich, according to

which he has no criminal record. In addition,

we ask that the court admit and examine

this request and response from the district court, with

the attached signed judgment of October 30,

2014,

certified by the court,

as well as the reasoned ruling of the judicial

panel for civil cases of the Moscow

City Court dated January 17, 2015,

and also the documents, bound and formatted on

submission.

Your Honor, if I may, I would like to ask what

the prosecution—what does this

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prove? I believe that the fact that I am constantly being judged by Russian courts

by Russian courts

reflects positively on me.

As for the criminal conviction,

and as for all these administrative

matters, please note:

a month ago, the court notified us that on all

these administrative detentions and

arrests, a decision will be issued tomorrow at

12 noon. Therefore, I propose

waiting until tomorrow and then admitting

those decisions as well, along with the judgment of the European

Court on my seven applications.

Thank you.

I think we probably should not

admit these documents, because soon

they will already be outdated, as Alexei

Anatolyevich said: tomorrow there will be

a decision in the administrative

cases; as for the criminal case,

it has also been communicated, and I

think that fairly soon this too

—the European Court has sent questions

to the government, the communication stage is over, we

have replied, the government has replied,

so accordingly, a decision of the European

Court is pending. They have no fixed deadlines, but this case

was considered fairly quickly

by the European

Court; communication was completed a year ago, so I think

it will be soon.

Moreover,

the circumstances of that case have no

relation whatsoever to what we are considering here,

namely the events of the alleged crime

of 2009.

Your Honor, there will be yet another ground

for overturning the judgment if you

refer to another case where I am absolutely

sure there will also be a reversal.

The court does not even wish to familiarize itself with the documents.

We fully support the position

of Navalny's defense counsel, Mikhailova, and consider it

more than well-founded. Again, you understand

that an unclear situation is developing here.

Very well, let us assume that now you

admit these documents that

the prosecutor has submitted. By the way, I would draw

attention to the fact that in this instance

Prosecutor Bogdanov seems to have some kind of

selective approach here:

they provide you both the request and

the documents in bound and numbered form,

which, generally speaking, could not be said of

the previous

motion. So, as things stand now in this case,

a somewhat

unclear and conflicting situation may arise. It is entirely

possible that you will grant

the prosecution's motion. It is entirely possible

that you will admit the court materials,

the judgments, and the appellate ruling in

relation to the Navalnys, into the case file.

It is quite likely that you will refer to these

documents when speaking about Navalny's character,

when discussing the type and extent of punishment, and so

on. But do you understand the problem? You

will deliver a judgment.

Possibly that judgment will even enter into legal force,

and after that a decision will be issued in

the case I mentioned; accordingly, that

will become grounds for overturning the judgment. And

you are already incorporating that judgment into

your own judgment and taking it into account

when speaking about the type and extent of punishment

that you will impose on Navalny. I

believe there is a legal conflict here,

a point of collision.

Accordingly, the decision should be made taking into account

what we have said, and in addition,

indeed,

it is unclear to me what relevance this has.

procedural significance. Yes, well,

these documents are currently before us

the case is being considered in connection with the reversal

of the previously issued 2013 verdict

accordingly, we are proceeding on the basis of

the circumstances

the grounds for this

verdict and the materials concerning Navalny

to be used in issuing a new

judicial decision in the case

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firstly

well, here there is not even a concurrence

of crimes or a combination of sentences

here there is no

simple

court, the documents may have

significance in characterizing the person, point

four

part

four

article

and

our

in this case

there are also explanations which

were given

possibly

were called

which

the testimony of defendants is classified as

a category of evidence that

is presented by the party

for the defendant, that is, by the defense

accordingly, testimony given by

the defendant is evidence for the

defense; the defense will determine

the order in which evidence is presented and

accordingly will determine the order

of the subsequent questioning of the defendants, including Ofitserov

and Navalny on its side

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then it is proposed to give the floor to

the defense to complete the presentation

of evidence

I propose that you

take turns proposing

motions

as

we intended

before we move on to the procedure

for presenting evidence, we have matters

that require procedural

resolution

indeed

a motion regarding

exclusion under Article 75

of the Criminal Procedure Code

evidence obtained in violation of the requirements

of procedural law is inadmissible and has no

legal force; it may not be used

to prove any of the circumstances

provided for in Article 73 of the Criminal

Procedure Code. Part 3 of Article

7 of the Code provides that violations of the provisions

of this Code by a court, prosecutor,

investigator, bodies of inquiry, or

an inquiry officer in the course of criminal

proceedings entail recognition

as inadmissible of evidence obtained in this way

during the judicial

proceedings

In 2016, the prosecution examined

the following materials of the criminal case

the order on the provision of

the results of operational-search activities to the investigator, Volume 12, case file

133–134; the order on declassification of

information constituting a state

secret, Volume 12, case file

135–136; the ruling of the Kirov

Regional Court dated August 3, 2009, on

granting permission to conduct

telephone interception

Volume 12, file 137; the inspection and

listening record of audio recordings of conversations

of Navalny and Ofitserov, Volume 12, file 168

–226; the record of inspection of items dated

October 17, 2012, Volume 12, files 207–209

the forensic audio examination report

Volume 13, files 102 to

158; the order dated November 28, 2012

appointing a comprehensive psychological

forensic examination, Volume 13, file

195–201

and the report of the comprehensive psychological

and linguistic forensic examination, Volume

13, files 214

–260. We believe that all of the above-listed

materials are inadmissible

evidence obtained in violation

of the requirements of criminal procedure

law and cannot be

used by the court in rendering

a verdict for the following

reasons. Thus, on August 3, 2009, the presiding judge of the

Kirov Regional

Court issued an unlawful, unfounded

and unreasoned ruling granting

permission to conduct interception of

telephone conversations conducted by

Navalny and Ofitserov, Volume 12, file 137. As

follows from the text of the ruling,

the Kirov Regional Court

considered a certain application

by the head of the FSB of Russia in Kirov

Region concerning the interception of telephone

conversations conducted by Navalny and

Ofitserov. At the same time, the court

established that the FSB Directorate of Russia

for Kirov Region possessed materials

from an operational inquiry concerning

the head of the project for the regional targeted

program for the development of the timber industry

complex of Kirov Region for 2009–2015,

Roman Borisovich Shipov, who

was extorting money from Burdin, director of NIPI Lesprom, Moscow,

in the amount of

approximately 1.5 million rubles (about US$50,000 at the time) for

approval of the plan developed by the institute

payment under the contract. In connection with this fact, on June 23

2009, the Investigative Directorate of the FSB (Federal Security Service)

of Russia initiated, with respect to Shipov,

criminal case No.

32322 on suspicion of an offense

under Part 3 of Article 30

and Part 4 of Article 159 of the Criminal Code

of the Russian Federation. However, having established

the fact of the initiation

of the criminal case, whether it was lawfully

initiated, and whether the rules of jurisdiction were observed

when

the criminal case was opened, and whether the application for

authorization to intercept telephone

conversations was submitted by an authorized person. Whether there was

an investigator's motion regarding

the need to conduct interception of

the telephone conversations of Navalny

and Ofitserov. In particular, in its ruling the court

gave no assessment whatsoever to the following

circumstances concerning the lawfulness of the conduct of the

investigation into the offense

provided for in Part 4

of the Criminal Code by the Federal

Security Service rather than by the

internal affairs bodies, as provided for by Article

151 of the Criminal Procedure

Code; the filing of the motion for

interception of telephone conversations.

of Navalny and Ofitserov by an improper person

— the head of the FSB of Russia for Kirov

Region. Under Articles 38

and 186, after a criminal case has been initiated and

accepted for proceedings, it is precisely

the investigator, and no other person, who is authorized

to independently direct the course of the

investigation and decide on the

conduct of investigative actions; if

he considers it necessary to carry out

interception of telephone conversations.

he applies to the court with a motion for authorization

for such

interception. In this case, however,

the initiator of the interception of

the telephone conversations of Navalny

and Ofitserov was not the investigator

in charge of

the criminal case against a certain

Shipov, but the head of the FSB Directorate of Russia for

Kirov

Region. Thus, in authorizing

interception of telephone conversations.

of Navalny and Ofitserov, the court completely

failed to assess the lawfulness

of the criminal proceedings within which

the head of the FSB for Kirov

Region submitted the request for

interception of telephone conversations.

of Navalny and Ofitserov. Moreover, the court did not

conduct a proper review of

whether the person initiating

the obtaining of judicial

authorization had the necessary powers.

Furthermore, having noted in its ruling

the fact that a criminal case had been initiated,

the court ignored the provisions of

criminal procedure

legislation governing the procedure for

obtaining judicial authorization for

interception of telephone conversations.

In granting the application of the head

of the FSB of Russia for Kirov Region for

interception of telephone conversations, the court

was guided

not by Article 186 of the Criminal Procedure

Code, but only by Articles 6 and 7 of the Law

of the Russian Federation on operational-search

activity

(operative investigative activity). Thus, the

fact that the order of the

head of the FSB of Russia for Kirov

Region on interception of telephone

conversations was issued in the course of

the investigation of a previously initiated

criminal case required a different procedure of judicial

review.

The court also completely

failed to examine the issues of

the necessity of intercepting telephone conversations

of Navalny and Ofitserov. As follows from the court ruling,

the court did not examine materials

demonstrating the lawfulness and

substantiation of the order of the head

of the FSB of Russia for Kirov Region

interception of telephone conversations.

involving Navalny

and Ofitserov, and thus completely evaded

Under Part 9 of Article 9 of the Federal

Law on Operational-Search

Activity, a court decision

must be reasoned and contain

reference to specific circumstances

confirming the need to restrict

citizens' constitutional rights through

interception of telephone conversations.

However, since the court was not presented with

and therefore did not examine

materials

showing the necessity of

conducting interception of telephone

conversations, the court was deprived of the opportunity to assess

the lawfulness and grounds for carrying out

this operational-search

measure. In addition, the court ruling

does not contain specific data

confirming the necessity of

intercepting the telephone conversations

of Navalny and Ofitserov. The ruling

merely states that, according to operational

information received regarding the stated facts

of unlawful activity — meaning, apparently,

that Shipov — there is information that

the regional governor's adviser

Alexei Anatolyevich Navalny and the director

of LLC VLK, Pyotr Yuryevich Ofitserov, and given

that, for the purpose of documenting and stopping

the said unlawful acts of Shipov

telephone interception is required

to authorize the interception of Navalny's and Ofitserov's calls

by the FSB Directorate for Kirov Region

the interception of telephone

conversations conducted by Navalny

and Ofitserov using the telephones they used

for a period of 180 days, while the court did not

take into account

the activities of a certain Shipov, while Navalny

and Ofitserov had never been participants in

criminal proceedings in the criminal

case within which the authorization was issued

for the interception

of their telephone conversations

thus, the judge's ruling did not

state what factual

information about Navalny's awareness

and Ofitserov's awareness of Shipov's activities was

presented to the court. Is it possible, on

the basis of these materials, to conclude

that the operational-investigative

measure was lawful

nevertheless

in the absence of the necessary information

objectively confirming the need

to intercept telephone

conversations of Navalny and Ofitserov, the court

authorized this operational-investigative

measure not only without

specifying the telephone numbers subject

to interception, but also by setting the maximum

permissible period for such interception

180

days. It is entirely obvious that all

of the above indicates

the unlawful nature of the ruling adopted on August 3

2009 by the Kirov Regional Court

granting authorization for

the interception of telephone

conversations of Navalny and Ofitserov. This

court ruling was issued not only

in violation of the norms of the Criminal Procedure

Code, but also in violation of the provisions

of Article 23 of the Constitution and Article 8

of the European Convention for the Protection of Human Rights

and Fundamental Freedoms, and therefore cannot

be used as

evidence in this criminal

case. We believe that all consequences, all

information and materials obtained, including

the conclusions of the comprehensive phonoscopic

and psychological expert examinations, which were based

on these audio recordings, authorization

for whose recording was unlawfully

granted by the Kirov Regional Court on August 3

2009, are also inadmissible and

cannot be used as

evidence in this criminal

case. In addition, there are other violations

committed by the investigation that make

the use in the evidentiary process

of the above materials examined by the

prosecution in court

hearings impossible

By a ruling of 201[?], to the acting head of the FSB

of Russia for Kirov Region, Colonel

Ryasov. Volume 12, case file pp. 133–134. The Main Investigative Directorate of the Investigative Committee of the Russian Federation was

sent rulings granting

authorization to conduct operational-investigative

for the interception of telephone conversations

No.

139.45 of August 3, 2009, as well as

two CDR optical discs containing audio

files obtained during the interception

of Navalny's telephone conversations

According to the record of inspection and

listening to the audio recording of conversations

between Navalny and Ofitserov dated August 8

2012, Volume 12, case file pp. 168–206,

investigator Platonov of the Main Investigative Directorate of the Investigative Committee of the Russian Federation

conducted an inspection and listening

of audio recordings

obtained by officers of the FSB Directorate of Russia for

Kirov Region in the course of carrying out

operational-investigative measures

for the interception of telephone conversations

conducted on the basis

of a ruling of the Kirov

Regional Court dated August 4, 2009. In

the materials of this criminal case

there is no such ruling

authorizing the interception of telephone

conversations of Navalny and Ofitserov

the investigator inspected

and listened to audio recordings obtained

illegally, without judicial

authorization. In addition, in the record

of inspection and listening to the audio recording

of conversations between Navalny and Ofitserov

the description of the discs provided does not

match the description of the discs specified

in the ruling on the submission

of the results of operational-investigative activity dated July 19, 2012, which

calls into question the authenticity

of the discs inspected by the investigator and

the reliability of the information contained on them

moreover, the case materials contain no

confirmation whatsoever

that the audio recordings were properly stored before their

first inspection on August 8, which raises

grounds

for doubt in this case

moreover, the origin is unknown

of the discs referred to in the record of inspection

of items dated October 17, 2012. Volume

case file pp. 207–209. According to the record,

the investigator of the investigative group of the Main Investigative Directorate of the Investigative Committee of the Russian Federation

inspected items obtained as

a result of the operational-investigative measure of intercepting

telephone conversations. Further in the

record it is stated that an inspection was made

of one white paper envelope

with a printed paper label and an explanatory

inscription reading as follows: materials

one optical disc, expert report

dated October 15, 2012, in criminal case

No. 20171368-1 with the results

however, not one but two optical discs

cdr However, according to the cover letter

regarding the forwarding of the expert opinion

dated October 15, 2012, in

this criminal case, Volume 13 of case file O

from the expert institution to the Main Investigative Directorate of the Investigative Committee

expert opinions were sent together with

appendices and tables, as well as three

optical discs, packed in three

paper envelopes, sealed

and certified with the expert's signatures

thus, the above-mentioned materials

contain differing information about

the number of discs and their packaging, which

indicates improper preservation

and also casts doubt on the reliability

of the procedural actions described

in the record of inspection of items

dated October 17, 2012, which was

examined by the prosecution at the

court

hearing. Also,

not all necessary actions were taken

aimed at preserving the information

contained on the CDs in its original

form, excluding the possibility of making

any changes or deletions, considering

that the discs are merely storage media

copied from another device

for the information; the investigation did not establish

the device on which the original

original

information is stored. The order on

the submission of the results of operational-search

measures, as well as in all relevant investigative actions,

also

contains differing descriptions of the appearance

and identifying features of the optical

discs containing audio recordings of telephone

conversations of Navalny and Ofitserov

Ofitserov, which indicates

the inadmissibility of their use in the

process

of proof. We particularly note that a number

of audio recordings of telephone conversations

presented by the investigation were made

after the expiry of the 18-day period established

by the Kirov Regional Court as mandatory

and the order granting permission to

conduct the interception of these telephone

conversations is absent. Even at the stage of

the preliminary investigation, the defense

for Navalny sent a request to the

Directorate of the Federal Security Service

for Kirov Region with

a request to provide a number of items of information,

including the full set of audio

files of the recorded telephone conversations.

However, to date, responses to

this request have not been

received by the defense. The criminal case file

contains only the

selective fragments presented by the investigation

of the audio recordings of the conversations; the full

audio files of the recorded telephone

conversations are absent from the criminal case

materials, which places the defense in an

unequal position in relation to the

prosecution and gives rise to justified

doubt as to the admissibility of the presented

fragments as evidence.

In the criminal

recording,

there may be information about the complete non-involvement

of Navalny and Ofitserov in the incriminated act. On

the basis of the foregoing, we ask the court

to declare inadmissible, as obtained in violation of the requirements

of criminal procedure law, the previously

listed materials of the criminal

case, and

to order

the directorate

that carried out the interception

of Navalny's telephone conversations

and Ofitserov's to state what grounds existed for

intercepting their telephone conversations,

what technical means

were used, on what media

the original recordings of the phonograms are stored,

of the telephone conversations, what measures were

taken in storing the phonograms,

whether copies were made of these phonograms,

when, by whom, and on whose instructions

they were transcribed from

the phonograms, whether such phonograms and other

materials were destroyed in compliance with

the requirements of part ___ of article ___ of the Federal

Law on Operational-Search

Activity, and also which judge of which court

was notified of the destruction of the phonograms

and materials obtained in the course of carrying out

operational-search measures in relation to Navalny and Ofitserov.

When were

operational records opened in relation to Navalny and Ofitserov,

and also

what were the dates of closure of the operational

records? In addition, we ask that the court request

from the FSB Directorate for Kirov Region the actual operational

record files concerning

Navalny and Ofitserov, as well as all

audio files of the recorded telephone

conversations obtained in the course of carrying out

operational-search measures in relation to Navalny and Ofitserov

operational-search activities.

By the defense counsel, I ask that this be admitted to the case file.

Well, what can I add? I would just like

to say

that

I can't wait any longer already.

You see, the defendant is actively prompting me,

Ofitserov is prompting me. And I simply want

to draw attention to the fact that this is standard

practice for the FSB (Federal Security Service) for years; this is how they

carry out unlawful

activity against me. They take

some criminal case that has absolutely nothing

to do with me, and within the framework

of that case they begin conducting external

surveillance and seizing various documents.

to record telephone conversations

electronic correspondence, as indicated here

the Shipov case—I saw this Shipov once

or maybe twice in my life; my surname

was never mentioned at all in his case, not once, that is,

meaning it has absolutely no relation to me

Why, within the framework of his case, were recordings of my

telephone conversations made

This is genuine unlawful operational-search activity, and it is the duty

of this court to assess it as operational-search activity. That is the first point.

Second, essentially, I just wanted once again

to draw attention, as I have drawn attention

both in this trial and in the previous one,

after we listened to this wiretap here

it proves exactly

the opposite; this wiretap proves exactly

the opposite—that there was no

criminal conspiracy, that I know nothing

about the VLK company, because I am asking

the officers, and that I had no conversations with

my, uh,

accomplice Opole; I did not discuss VLK over the phone, and

so on and so forth, and that is precisely—it is,

the FSB (Federal Security Service), as we have just read out in

the motion, somehow edited it

and did not provide the court with the entire

wiretap. But even this, uh, even this excerpted and

submitted portion

shows

that what is described in the

indictment did not happen. Therefore, of course,

we consider it important to know what was in the operational case file

and what explanation was given by the FSB of Russia

as to why and on what grounds

they wiretapped me in connection with some simply

criminal case that had absolutely nothing to do with me

and so on. I support the motion.

Thank you, Your Honor. Only today, with

surprise, did I learn that I had been wiretapped in connection with

someone else’s case—I do not even know who that is

supposed to be.

please, for

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Your

please, everyone

the materials that

were examined regarding the operational measure of monitoring

telephone conversations

in relation to Oiro

of the region, by ruling of the Regional Court

dated August 3, 2009

The ruling shown indicates

that the court had

sufficient grounds to grant

authorization for the specified

operational-search measure after

verifying the legality of the relevant

resolution of the Russian Interior Ministry in the Kirov Region

Yes, the ruling established the legality

of the procedure. The defense’s objections to the ruling

regarding the operational-search activity materials

the investigator’s reports and resolutions

on declassification of information were also prepared in

accordance with the requirements of Article 11

of the federal law

No. 144, as well as paragraph 17 of the instruction on the procedure

for providing the inquiry bodies, investigative bodies

investigator, prosecutor, and court with the specified evidence and specified

documents

The defense’s arguments that they were received improperly

are refuted: all necessary mandatory

registration numbers and dates of issuance

certifications and signatures of authorized

official

persons are present. In addition, the said

documents contain the relevant

attachments, including the ruling

of the Kirov Regional Court dated August 3

2009 authorizing the interception of

conversations

using telephone communications, optical

discs also containing recordings of conversations

the inspection report of the audio recordings dated August 8, 2012

which was also conducted in accordance with the requirements of the law

in the presence of attesting witnesses during

the inspection; upon its completion

any remarks

from the participating persons, who personally familiarized themselves

The contents of the inspection of items dated October 1, 2012

which also

is

admissible under the law because

here, upon completion of the inspection

the participating persons, having personally reviewed

the relevant protocols during

the inspection of the case, noted that the following were examined

materials from operational activities

summoned in accordance with the procedure established by law

comprehensive forensic examination No. 15

dated January 2012 under No. 246/64

was conducted on the basis of the relevant

investigator's ruling of 2012, in

full compliance with the requirements

of criminal procedure law

requirements; the qualifications

and objectivity of the experts of the Main

Directorate of Criminalistics of the Investigative

Committee of Russia, who possess sufficient

specialized knowledge to conduct

the examination, are not in doubt; the examination

the experts' rights and duties under Article 57 of the Criminal

Procedure Code of Russia were also explained, and they were

warned about liability for knowingly giving

a false conclusion under Article 307 of the Criminal

Code. In our view, the arguments of the defense also do not hold up

nor do the defense's arguments that

the ruling and the evidence should be deemed

the comprehensive forensic examination of the 28th

of 2019, and the corresponding

expert opinion of January 8, 2013

The examination was conducted on the basis of an order issued

by the investigation in accordance with the criminal

procedure law; the experts were

provided with everything necessary to carry out

the examination, including the materials of the criminal case

and the questions were properly formulated

The experts were warned of criminal

liability under Article 307 of the Criminal

Code of Russia. Thus, when conducting

the said examinations, there were also used

materials from operational-investigative

activities, which were properly

legalized and which

the parties did not recognize as unlawful. As for

the defense's argument about the need

to request state information regarding

how exactly the noted

operational measures were carried out and with the use of

what means, as well as the submission of

the files, I believe there are no grounds or need for that

First, the materials contain sufficient

evidence confirming the lawfulness

of the measures carried out

The result, as well as the recordings, has not been challenged, and besides

those registration files which, for

submission to the court, most likely contain

some other points that do not

relate to the subject matter of the judicial

hearing. Therefore, I believe that in

this case

it is necessary to examine

the evidence

I support the state prosecutor's position; there are no grounds for

granting

the motion

Then to the deliberation room

until

2:00 p.m., everyone

By the way, maybe we'll come back after lunch then

at 2:00 p.m. And if earlier?

So what time did he say in the end, 2:30 or

2:00?

What are we doing?

Having lunch.

That whole hysteria yesterday was

completely incomprehensible, with the bailiffs running around

trying to catch everyone all over Moscow; it was

completely unnecessary. The hearing is clearly moving along

there are at most 2 or 3 days left. The course

of the trial is completely repeating the course

of the proceedings that we had in the Kirovles case

(the Kirovles case, a well-known Russian embezzlement case). Yes, everything is happening

in exactly the same way. That is precisely why no one

has the slightest doubt that in this case too

there will be the same guilty verdict

and that guilty verdict

we will overturn in the European Court of Human

Rights, proving that this trial too, well,

strictly speaking, has nothing to do with a fair trial

at all. Everything that is being done, and this

remarkable speed

of the proceedings, and the remarkable

things that are happening, such as the fact that

Ofitserov, who was yesterday

hospitalized, was simply thrown out of

the hospital—all this just shows that they are trying

to speed things up in order

simply to interfere with the course of the election

campaign. They need as quickly as possible

to issue a new guilty verdict in order

once again to state legally that

I supposedly do not have the right

to participate in the elections. Nevertheless,

despite the fact that we understand that

the verdict will be guilty

my election campaign will not

stop. I believe that I have every

moral and legal right

to participate in the elections, and I will

take part in them because I am supported

If there are any questions, go ahead

I'll answer a couple. The bailiffs who accompanied you yesterday,

will they be escorting you back too, or was that just a one-time action?

Well,

they had instructions to bring me here

although they didn't actually bring me anywhere, they just rode

along with me. It's unlikely the judge will instruct

them to take me home; most likely

they've already left. Will you stay in Kirov

or

are you flying out? Tomorrow, or the day after at the latest,

there will already be the closing arguments and the final statement

so everyone is interested in having all this

end sooner and in having some

clarity about the proceedings for tomorrow

Will it be scheduled? Yes, of course, we have no

desire whatsoever to drag out

this trial, and we have demonstrated that. Well,

for example, today I could easily have postponed

the hearing and said that I did not have

my lawyer Kobzev, no problem at all

the judge would have been obliged to adjourn, but

we did not do that. We want this

all to be over sooner. We also have no

the desire to spend a lot of time in

Kirov

No, let me not speak in English right now, I won't

be speaking because, well,

the Rossiya TV channel is filming, and then they

will show it as an example of my betrayal

a person speaking English

let me speak with you separately

Thank you very much, thank you

very much. Well, we'll see each other again after

[music]

lunch