Постановление ЕСПЧ от 23.02.2016 <Дело Навальный и Офицеров (Navalnyy and Ofitserov) против России> (жалобы N 46632/13 и 28671/14) [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF NAVALNYY AND OFITSEROV v. RUSSIA
(Applications nos. 46632/13 and 28671/14)
JUDGMENT <*>

(Strasbourg, 23.II.2016)
———————————

<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Navalnyy and Ofitserov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis  Guerra, President,
Helena ,
George Nicolaou,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 19 January 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

  1. The case originated in two applications (nos. 46632/13 and 28671/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by two Russian nationals, Mr Aleksey Anatolyevich Navalnyy and Mr Petr Yuryevich Ofitserov («the applicants»), on 24 June 2013 and 8 April 2014 respectively.
  2. The applicants were represented by Ms O. Mikhaylova and Ms S. Davydova, lawyers practising in Moscow. The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
  3. The applicants alleged that their criminal conviction for embezzlement had been based on an unforeseeable application of criminal law, in breach of Article 7 of the Convention, and that those proceedings had been conducted in violation of Article 6 of the Convention. They also alleged that their prosecution and conviction had been for political reasons, in breach of Article 18 of the Convention.
  4. On 7 October 2014 the applications were communicated to the Government. It was also decided to grant the applications priority under Rule 41 of the Rules of Court.

 

THE FACTS

 

  1. The circumstances of the case

 

  1. The applicants were born in 1976 and 1975 respectively and live in Moscow.
  2. The first applicant is a political activist, opposition leader, anti-corruption campaigner and popular blogger. He is a lawyer and was, before his criminal conviction, a member of the Moscow bar association. The second applicant, a businessman, was at the material time a director of the limited liability company OOO Vyatskaya Lesnaya Kompaniya (ООО «ВЛК» — hereinafter «VLK»).

 

  1. Timber sales contract between Kirovles and VLK

 

  1. In 2007 the Kirov region’s Property Management Department founded the State unitary enterprise Kirovles (КОГУП «Кировлес»). According to its incorporation documents, Kirovles’ commercial activities were woodcutting and timber processing. It owned thirty-six timber mills registered as its operational branches. It appears that by 2009 the company was in substantial debt and continued to make losses.
  2. In January 2009 the Governor of the Kirov region, Mr Belykh, invited the first applicant to be a volunteer consultant on enhancing transparency of the region’s property management. At first, Mr Navalnyy carried out this role de facto, before being officially appointed on 21 May 2009. One of his projects was to help steer the region’s loss-making timber industry out of crisis.
  3. In early 2009 the first applicant discussed Kirovles’ financial and logistical problems with its director, X. He suggested that the company join forces with a timber trading company to bring in customers and, in particular, curtail the Kirovles timber mills’ practice of direct sales for cash bypassing Kirovles’ accounts. X agreed, and the first applicant invited the second applicant, who he knew would be interested in working in the industry, to set up the timber trading company. The second applicant created VLK and registered it in March 2009.
  4. On 15 April 2009 Kirovles, represented by X, concluded a framework contract with VLK, represented by the second applicant. The contract provided for non-exclusive sales by Kirovles to VLK, who would then sell the goods on to the customers at 7% commission. The timber specifications and prices were set out in thirty-six annexes to the contract, which were signed in the period 15 April to 13 July 2009. In accordance with the contract, from 12 May to 31 August 2009 Kirovles supplied VLK with timber worth 16,165,826 Russian roubles ((RUB), the equivalent of approximately 330,000 euros (EUR) at the material time).
  5. On an unidentified date X’s stepdaughter, Ms B., the then director of Kirovles’ commercial department, was employed by VLK part-time as its deputy director general.
  6. Between July and August 2009 the first applicant commissioned Kirovles’ audit. In view of its results, the Governor’s office set up a working group for restructuring Kirovles, to which the first applicant was appointed.
  7. On 17 August 2009 the property management department suspended X as Kirovles’ director, and on 17 October 2009 he was dismissed for mismanagement.
  8. On 1 September 2009 Kirovles terminated the contract with VLK.

 

  1. Kirovles fraud inquiry

 

  1. In the course of 2010 the first applicant pursued an anti-corruption campaign and published a number of articles and documents exposing high ranking officials’ involvement in large-scale fraud. In particular, on 16 November 2010 he published an article claiming that at least four billion US dollars of State funds had been misappropriated during the construction of the East Siberia-Pacific Ocean oil pipeline. In the article, he referred to a 2007 audit report and suggested that the President, Vladimir Putin, and the Deputy Prime Minister, Mr Igor Sechin, had both been personally implicated.
  2. On 9 December 2010 the Kirov Regional department of the Prosecutor’s Office (later replaced by the Investigative Committee of the Russian Federation — «the Investigative Committee») opened an inquiry on suspicion that the applicants had defrauded Kirovles by inducing its director to enter into a loss-making transaction. When questioned, X stated that he had met Mr Ofitserov and Mr Navalnyy at the Governor’s office and had complained to them that Kirovles was making losses because of falling timber prices and a lack of customers, among other reasons. Mr Navalnyy had later returned to him with the idea of setting up a trading intermediary, VLK, to bring customers to Kirovles, and they had concluded the contract. He indicated that although VLK had paid average market prices for the timber, he had later realised that their commission and the terms of supply had cost Kirovles extra, making it unprofitable. He had therefore terminated the contract. X further stated that when concluding the contract he had been under the impression that Mr Navalnyy had been acting in his official capacity at the Governor’s office, and that as a State enterprise director he had to comply with the decisions of regional government. Two other former Kirovles employees were questioned, Ms B. and its deputy director Z. They confirmed that although VLK had paid average market prices, Kirovles could have increased its margins by selling the timber directly and it had therefore made a limited profit on these sales. They also claimed that the contract had been entered into under pressure from both applicants, whom their director had perceived as acting for the Governor.
  3. The Investigative Committee also questioned the second applicant. He stated that he had approached X directly because he knew that Kirovles needed customers and he had offered to act as an intermediary. The other party had not been subjected to pressure or deception, the prices had been fair, and the first applicant had not been involved in the negotiations. The first applicant was not questioned because «his whereabouts could not be established».
  4. On 11 January 2011 the Investigative Committee decided not to open a criminal investigation against either applicant for lack of corpus delicti.
  5. On 12 January 2011 criminal proceedings were instituted against X for alleged abuse of his official position, unrelated to VLK; he was suspected of preferential treatment of a different private company he was affiliated with through his family.
  6. On an unidentified date the inquiry resumed in respect of the applicants. The investigator questioned X, Ms B., Kirovles’ deputy director Z., the Deputy Head of the Kirov Regional Government, S., and both applicants. The first applicant stated, in particular, that after X had reported to the Governor on Kirovles’ losses and lack of customers, the Governor had made an appeal to businesses interested in a commercial partnership with Kirovles. VLK had responded, along with others; the Governor’s office had not asked Kirovles to show any preference for VLK or taken part in the contract negotiations. The sales to VLK amounted to only 2% of the total volume of Kirovles’ sales.
  7. On 28 January 2011 the Investigative Committee decided not to open a criminal investigation against the first applicant for lack of corpus delicti. As regards the second applicant, they decided to transfer the inquiry file to the Kirov Regional Department of the Interior, which had competence to decide whether there were grounds to open a criminal investigation.
  8. On 2 February 2011 the first applicant gave a radio interview with a strong anti-corruption message, describing the ruling party of United Russia as «a party of crooks and thieves».
  9. On 7 February 2011 the inquiry resumed. The investigators questioned both applicants, X, two other former Kirovles employees, Ms B., two other former VLK employees and its then director (the second applicant’s brother), as well as five high-ranking officials of the Kirov region, including its Governor. He stated that in 2008 Kirovles had been in a difficult financial situation and had substantial debt. He had therefore assigned the first applicant to study ways of restructuring Kirovles, and the latter had participated in working groups and working meetings concerning this matter. He explained that the first applicant had not been able to put pressure on X or influence the commercial activities of the timber industry, including Kirovles. It was he himself who had ultimately taken the decision to terminate the contract between Kirovles and VLK as a result of a series of working meetings between him, X and both applicants.
  10. On 9 February 2011 the Commercial Court of the Kirov region placed Kirovles in administration.
  11. On 3 March 2011 the Privolzhskiy Federal Circuit Investigative Committee decided not to open a criminal investigation in respect of the applicants for lack of corpus delicti.
  12. On 10 May 2011 the acting Chief of the investigation division of the Investigative Committee decided to open a criminal investigation in respect of both applicants. They were suspected of deception and abuse of trust of Kirovles director, an offence under Article 165 § 3 (b) of the Criminal Code.
  13. During the investigation, which lasted for eleven months, both applicants were questioned, as well as X, Ms B., two former Kirovles employees and nineteen timber mill directors. Kirovles and VLK’s accounts were examined, and three reports were ordered from experts in accounting, finance and economics. It follows from the parties’ submissions that the following witnesses were also questioned. Witness Mr A., Chief of the Kirov Regional Forestry Department, made a statement about how the contract between VLK and Kirovles had been concluded and how the first applicant and X had been at odds. Witness Mr K., Deputy Chief of the Kirov Regional Forestry Department, stated that the first applicant had insisted on an independent audit of Kirovles and proposed restructuring it to prevent financial manipulation by X. Seven other witnesses, all managers of VLK, gave details about VLK’s work to find customers for Kirovles in accordance with the contract. Based on this evidence, the investigators found that there was no case against the applicants.
  14. On 10 April 2012 the Investigative Committee closed the criminal investigation in respect of both applicants for lack of corpus delicti.
  15. On 25 April 2012 the Investigative Committee reversed that decision.
  16. On 5 July 2012 the Chief of the Investigative Committee, Mr Bastrykin, spoke at its general meeting and condemned, in particular, the decision to close the criminal investigation in respect of the first applicant. In the extract broadcasted on Russia’s main TV channels he stated:

«You have got a man there called Mr Navalnyy. The criminal case, why have you terminated it without asking the Investigative Committee superiors? Today the whole country is discussing [this fraud], the talks [between Mr Navalnyy and Mr Belykh] have been published, and we cannot hear anything except grunting. You had a criminal file against this man, and you have quietly closed it. I am warning you, there will be no mercy, no forgiveness if such things happen again. If you have grounds to close it, report it. Feeling weak, afraid, under pressure — report! We will help, support you, take over the file, but quietly, like that — no…»

  1. On 26 July 2012 the first applicant published an article accusing Mr Bastrykin of breaking laws imposing restrictions on high-ranking public servants. The article included copies of documents stating that he held a Czech residence permit and owned a private business during his tenure at the Investigative Committee.
  2. On 30 July 2012 the Investigative Committee’s investigator for high profile cases decided to open a criminal investigation against X on suspicion that he had conspired with unknown individuals to dissipate Kirovles’ assets through VLK, thus committing an offence under Article 160 § 4 of the Criminal Code.
  3. On the same day the case against X was joined with the criminal case against the applicants.
  4. On 31 July 2012 charges were formulated against the first applicant under Article 160 § 4 of the Criminal Code. On 3 August 2012 the same charges were formulated in respect of X, and on 6 August 2012 in respect of the second applicant. They were all suspected of conspiring to dissipate Kirovles’ assets.

 

  1. Decision to disjoin cases, plea-bargaining and the accelerated proceedings in X’s case

 

  1. On 26 September 2012 the Deputy Prosecutor General granted X’s request to conclude a plea-bargaining agreement and to have his criminal case examined in accelerated proceedings.
  2. On 1 October 2012 the plea-bargaining agreement was signed by X and the Deputy Prosecutor General. Among other conditions, X undertook to «actively provide the investigation with information» about «Mr Ofitserov and Mr Navalnyy’s involvement in the misappropriation [of assets], their roles in the commission of the crime, the specific steps taken to implement the criminal plan, including at the stages of preparation and conclusion of the sales contract and demonstration of its feasibility and utility.» On 17 October 2012 the criminal case-file against X was disjoined from the applicants’ case.
  3. On 19 October 2012 the first applicant learned of the plea-bargaining agreement from the press and filed a complaint with the Investigative Committee and the Prosecutor General, alleging that it had breached his procedural rights in the criminal case against him. He requested that X’s case, if it had been severed, be joined with their case again.
  4. On 21 November 2012 the prosecutor’s office replied that the plea-bargaining agreement had been concluded lawfully.
  5. On 5 December 2012 the first applicant served the Leninskiy District Court of Kirov («the District Court») with a complaint challenging the decision to sever X’s criminal case and examine it in accelerated proceedings. On the same day he filed another complaint with the Prosecutor General, challenging the decision to disjoin X’s criminal file from his own.
  6. On 10 December 2012 the Investigative Committee dismissed the request to join X’s criminal case with the applicants’ case.
  7. On 18 December 2012 the prosecutor’s office replied that the cases had been disjoined lawfully.
  8. On 24 December 2012 the District Court gave judgment in X’s case, after examining it in accelerated proceedings, without an examination of evidence. The court found X guilty of dissipating Kirovles’ assets (Article 160 § 4 of the Criminal Code) and handed him a four-year suspended sentence with three years’ parole. The judgment indicated that X had conspired with two others, «N.» and «O.» and contained, in particular, the following findings:

«…at the end of December 2008 [to the] beginning of January 2009…the Governor of the Kirov region… met the directors of the big State enterprises, including [X]… and introduced his volunteer consultants including N., who was officially appointed to this role… on 21 May 2009.

In approximately January to February 2009 N… developed a criminal plan to misappropriate Kirovles’ assets in favour of a newly created entity under his control, to be founded and led by O.

In approximately February to March 2009 N. continued to implement his criminal intent to dissipate Kirovles’ assets, ordered the commission of the crime… informed [X] about the forthcoming creation of an intermediary enterprise… aimed at dissipating the assets in [X’s] charge.

[X]… did not take any steps to prevent N.’s unlawful acts [and] agreed with him, thus entering into a criminal conspiracy with N. and O. aimed at large-scale dissipation of the assets… entrusted to him.

To implement N.’s criminal plan, O., acting in agreement with him, created in March 2009… the limited liability company «OOO VLK»… thus facilitating the commission of the crime…

Later, [X]… acting deliberately and in agreement with N. and O., signed a sales contract with VLK… in full realisation of the damaging consequences… because of [VLK’s] lack of adequate collateral…

In doing so, [X], N. and O. had sound knowledge that OOO VLK would pay for the goods under the terms of the contract and its annexes at a price known to be lower than that Kirovles could have received without an intermediary…

In the period 15 April 2009 to 13 July 2009… [X] and O., in conspiracy with N., who had organised the crime and ordered its implementation, signed [thirty-six] annexes to the contract… which stipulated… a price which was deliberately reduced by all [of the] partners in crime without any economic need compared to the price Kirovles could have sold its products for if it supplied the VLK customers of directly.

While doing so, N. and O. realised that [X] was unlawfully depriving Kirovles of the possibility of independent sales of its timber products at market prices and was thus placing its timber products at VLK’s disposal without a sufficient and equivalent reimbursement of its market value.

In the period 15 April 2009 to 30 September 2009 in Kirov, [X], acting in abuse of his official position, and O., in conspiracy with and on the instructions of N., deliberately implemented the terms of the sales contract… and its annexes…

[X], acting in premeditated conspiracy with N. and O., out of acquisitive motives therefore abused his official position,… unlawfully dissipated the assets he was in charge of… for the benefit of third parties — partners in crime and OOO VLK under their control, thus causing significant damage to the assets of their owner, Kirovles.

The Deputy Prosecutor General… proposed [using] accelerated proceedings for the judicial hearing and issuing the judgment… in respect of [X]…

The accused [X] has pleaded guilty to the entirety of charges, accepted the indictment and the proposal… of accelerated proceedings on the basis of the concluded plea-bargaining agreement.

Information stated by [X] in compliance with the terms of the concluded plea-bargaining agreement, is full and true and corroborated by the evidence gathered in the case. The court therefore concludes that [X] has complied with the obligations set out in the plea-bargaining agreement, and that judgment may therefore be given in respect of the accused without an examination of evidence, in accordance with the procedure set out in Article 316 of the Code of Criminal Procedure as required by Article 317.7…»

  1. On 3 January 2013 the first applicant lodged an appeal against the judgment given in X’s case. He challenged, in particular, the use of accelerated proceedings in that case, the fact that it had been disjoined from the case against him and the second applicant and alleged that the judgment had been prejudicial to the outcome of their case.
  2. On 9 January 2013 the judgment against X acquired legal force.
  3. On 17 January 2013 the District Court informed the first applicant that he could not appeal against the judgment in X’s case because he had not been a party to those proceedings. He was denied access to the transcript of the court hearing for the same reason.
  4. On the same day the charges under Article 165 § 3 (b) of the Criminal Code were lifted in respect of both applicants. The charges under Article 160 § 4 of the Criminal Code were maintained, although they were reformulated in respect of the second applicant.
  5. On 20 February 2013 the first applicant filed a complaint with the Kirov Regional Court («the Regional Court») about the refusal to consider his appeal.
  6. On 13 March 2013 the Deputy President of the Kirov Regional Court replied, stating that his appeal could not be examined because he had not been a party to the proceedings. Moreover, he indicated that the judgment against X could not be prejudicial to the applicant; his guilt had not been established, he had not participated in those proceedings and his name had not been mentioned in it.

 

  1. The applicants’ trial and conviction

 

  1. On 20 March 2013 the indictment was issued in respect of both applicants.
  2. On 3 April 2013 the District Court fixed the hearing in the applicants’ case for 13 April 2013.
  3. On 10 June 2013 the applicants filed a request with the District Court to have the judgment given in X’s case excluded from evidence. They argued, in particular, that admitting it would prejudice the outcome of their case.
  4. On 11 June 2013 the court dismissed the request on the grounds that the judgment against X did not predetermine the applicants’ guilt and, moreover, their names had not been mentioned in it.
  5. During the hearing, X was called and examined as a witness. He was first questioned by the public prosecutors, who then asked to read out his statements given during the investigation on the grounds that he could not remember some details and had given contradictory answers to some questions. The applicants objected on the grounds that during the investigation X had made the statements in his capacity as an accused, and an accused had the right to make false statements, not being under oath. Moreover, reading out his previous statements, especially in full, would hinder his cross-examination by the defence as it would remind the witness of the «correct» version of events he had accepted during his trial but could not remember at the applicants’ hearing. The court dismissed these objections and allowed the statements made by X during the investigation to be read out. The applicants and their defence team questioned X afterwards.
  6. The court also allowed, despite the applicants’ objections, the statements of Ms B. and six other witnesses to be read out. They were each first questioned by the prosecutor, then their previous testimony and statements were read out in their presence. Only then could the defence question them.
  7. On 10 June and 2 July 2013 a challenge by the applicants to the trial judge was rejected.
  8. On 11 June 2013 the court dismissed the applicants’ request to have material obtained by interception of the applicants’ telephone calls excluded. On 3 July 2013 it admitted this material as evidence.
  9. On 18 June and 2 July 2013 the court rejected the applicants’ requests to have several people called and examined as witnesses, including Mr A., Chief of the Kirov Regional Forestry Department, Mr K., Deputy Chief of the Kirov Regional Forestry Department, and the seven VLK managers who had been questioned during the investigation, as well as three expert witnesses.
  10. On 2 and 3 July 2013 the court rejected the applicants’ request for the following evidence: documents relating to Kirovles’ insolvency proceedings, Kirovles’ financial reports, an approved list of standard minimum prices for timber, complete records of intercepted telephone calls between the applicants, material relating to the criminal proceedings against X instituted on 12 January 2011 and the criminal case file relating to X’s conviction in the Kirovles case.
  11. On 3 July 2013, at the applicants’ request, the court admitted as evidence a report issued by a trade specialist indicating that the prices paid by VLK to Kirovles were above average. On the same day it rejected their request for the court to order expert reports by finance, economics and merchandising experts.
  12. On 17 July 2013 the first applicant was registered as a candidate for the Moscow mayoral elections.
  13. On 18 July 2013 the District Court gave judgment, finding the first applicant guilty of organising, and the second applicant of facilitating, large-scale embezzlement. The court relied on the testimony of X and his statements made during the investigation. It also relied on the testimony of forty-four witnesses and statements made by eight of them during the investigation, material obtained by way of operational-search activities, in particular intercepted email correspondence and telephone calls between the applicants, accounting documents and expert reports. As regards the judgment in respect of X, the court said:

«It follows from the judgment of the Leninskiy District Court of Kirov given on 24 December 2012 that [X] was found guilty of dissipation [and] embezzlement, that is stealing Kirovles’ assets entrusted to [X], on an especially large scale, committed by abuse of his official position in conspiracy with N. and O… a criminal offence under Article 160 § 4 of the Criminal Code.»

  1. The court further noted that it found X’s testimony, as well as his statements made during the investigation, truthful and concordant with other evidence; it also found that they were admissible and had been lawfully obtained.
  2. The court dismissed the first applicant’s allegations of political persecution or revenge by individuals who had lost their jobs at Kirovles or were otherwise disconcerted with his role in reforming the timber industry in the Kirov region. It also dismissed the objection to admitting X and Ms B.’s testimony and statements on the grounds that X had a vested interest in the proceedings, finding the objection unfounded and illogical. It explained the discrepancies between the testimony and pre-trial witness statements by the passage of time that had elapsed since the events in question and held that, in any event, the witnesses at the trial had confirmed the validity of their previous statements.
  3. The court noted that X had treated the first applicant as an official from the Governor’s office and that the applicant knew this. However, it stressed that the first applicant had not been accused, or convicted, of any abuse of his official position at the Governor’s office:

«Mr Navalnyy [is not suspected of] committing a crime by abuse of his official position; consequently, the defence’s arguments that the Governor’s volunteer consultant had no powers to give binding instructions to the companies’ management do not refute the accusation [or] prove that it was impossible for Mr Navalnyy to commit the crime and order its execution.»

  1. As regards the legal classification of the applicants’ offences, the court held:

«The court finds that the arguments put forward by the defence about the absence of unlawfulness, a necessary element of theft, because a regular civil-law transaction has been concluded by persons with legal capacity, are unfounded.

The Kirov region’s Property Management Department, acting on behalf of the owner of Kirovles, has provided in the certificate of incorporation and [X’s] employment contract that [X was under an] obligation to carry out his duties in good faith, reasonably and in accordance with the applicable legislation.

In accordance with Article 10 § 1 of the Civil Code, it is not permitted to exercise one’s civil rights with the exclusive purpose of causing damage to another person, act in circumvention of the law with unlawful intent, [or any other] intentional exercise of civil rights in bad faith (abuse of rights).

The court has established that contrary to the said provisions of the certificate of incorporation, the employment contract and the law, [X], acting on behalf of the company directed by him, has entered into a sales contract… with OOO VLK represented by Mr Ofitserov to exclusively facilitate stealing Kirovles’ property and transferring [it] for the benefit of OOO VLK… The conclusion of this sales contract has resulted in material damage [being caused] to Kirovles.

The court notes that neither Mr Navalnyy nor Mr Ofitserov is charged with organising and facilitating the conclusion of a legally invalid sales contract. On the contrary, what the [applicants are suspected of] is organising and facilitating the dissipation of Kirovles’ assets by concluding a sales contract with OOO VLK intended exclusively to create the impression that Kirovles had civil-law obligations towards OOO VLK to transfer timber goods to shipment recipients, as if for collateral, whereas in reality the goods would be transferred without OOO VLK [having] equivalent and sufficient collateral.

According to the ruling of the Plenary of the Supreme Court of the Russian Federation no. 51 dated 27 December 2007 «On Court Practice in Cases of Fraud, Misappropriation or Embezzlement», a perpetrator of misappropriation or embezzlement may only be someone entrusted with the assets of another legal person or individual, based on legal grounds for a specific purpose or for a defined activity. Based on the provisions of Article 34 § 4 of the Criminal Code, those who do not possess these special subjective characteristics qualifying [them] for misappropriation or embezzlement, but who directly participated in stealing assets in prior agreement with the person entrusted with the assets, must be criminally liable under Article 33 in conjunction with Article 160 of the Criminal Code in their capacity as organisers, inciters or facilitators.

It follows from the judgment of the Leninskiy District Court of Kirov given on 24 December 2012, which has acquired legal force, that the perpetrator of the crime Mr Navalnyy and Mr Ofitserov [are suspected of] was found to be [X], who had been entrusted with Kirovles assets as its director general. [X’s] acts were classified by the court as falling under Article 160 § 4 of the Criminal Code.»

  1. The court estimated that the damage caused to Kirovles amounted to RUB 16,165,826. It concluded that the first applicant was guilty of organising the theft of Kirovles’ assets by X (Article 33 § 3 in conjunction with Article 160 § 4 of the Criminal Code), and the second applicant of facilitating that theft (Article 33 § 4 in conjunction with Article 160 § 4 of the Criminal Code). They were sentenced to five and four years’ imprisonment respectively, to be served in a correctional colony. In addition, they were both fined RUB 500,000.
  2. The applicants were taken into custody immediately after the hearing.
  3. On the same day the prosecutor’s office of the Kirov region asked the court to release the applicants pending appeal, particularly since the first applicant was a registered candidate in the Moscow mayoral elections.
  4. On 19 July 2013 the Regional Court granted the request and released the applicants on parole.
  5. On 26 July 2012 both applicants lodged an appeal against the judgment of 18 July 2013. They challenged their conviction, insisting that it was unlawful and unfounded and that the first-instance court had relied on the judgment of 24 December 2012 against X in violation of the rules of criminal procedure. They also complained about the court’s assessment of evidence and the manner in which it had examined the witnesses.
  6. On 8 September 2013 the first applicant stood as a candidate in the Moscow mayoral elections. He came second, securing approximately 27% of the votes.
  7. On 13 September 2013 the applicants questioned the accuracy of the transcript of the first-instance hearing. The requested amendments were set out in an eighty-nine page document.
  8. On 27 September 2013 the District Court accepted a small number of amendments but rejected the rest.
  9. On 2 and 3 October 2013 the applicants filed additional grounds of appeal elaborating on those lodged previously.
  10. On 16 October 2013 the Regional Court dismissed the applicants’ appeal and upheld the first-instance judgment in substance. It amended their sentence and gave them both suspended prison terms on an undertaking not to change their place of residence.
  11. On 7 February 2013 the applicants each lodged appeals on points of law. On 1 and 2 April 2014 the Regional Court, sitting in a single judge formation, refused to give them leave to appeal.
  12. On 28 February 2014 the Basmannyy District Court ordered that the first applicant be placed under house arrest pending another, unrelated, criminal case against him. To justify the application of this preventive measure the court referred to, among other factors, the first applicant’s prior criminal conviction in the Kirovles case. The conditions of the house arrest included a number of restrictions, in particular a ban on communicating with anyone other than his immediate family and legal counsel, a ban on using the Internet and a ban on making public statements or comments to the media. The first applicant remained under house arrest for ten months.

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