last complaint by magnitsky's lawyers on fabrication of evidence by investigator silchenko...

8/14/2019 Last Complaint by Magnitsky's Lawyers on fabrication of evidence by investigator Silchenko (Translated)

1/3

1

Accepted by Tverskoi District Court of Moscow

On 13 November 2009

To The Tverskoi District Court of Moscow

From Attorneys of Moscow Collegium of Lawyers

D.V. Kharitonov and E.A. Oreshnikova

Re: Actions by Major O.F. Silchenko,

Investigator of Especially Important Cases,

The Investigative Committee of the Russian Interior Ministry

In Defence of S.L. Magnitskiy

Pursuant to Criminal Case 311578

from Criminal Case 153123

COMPLAINT

(pursuant to Article 125 of the Russian Criminal Procedural Code)

Major O.F. Silchenko, Investigator of Especially Important Cases of the Investigative Committee

of the Russian Interior Ministry, is assigned to investigate the criminal case in respect of S.L.

Magnitskiy accusing him of an offence under Article 199, p.2 of the Criminal Code of Russia.

On 16 October 2009, it was announced [by the investigation] to S.L. Magnitskiy, that the pre-trial

investigation was completed and on 20 October 2009, pursuant to Article 217 of the Criminal

Procedural Code, he was shown the materials of the criminal case which were collated and

numbered. After the defense and the accused S.L. Magnitskiy reviewed the materials of the

criminal case presented to them, S.L. Magnitskiy made a statement that was entered into the

[investigation] protocol. In particular, he stated:The materials presented to me today are collated into folders, however Investigator O.F.

Silchenko has not certified any of the document copies included in the materials. Instead, only the

last page in each folder is signed; it is left blank and states the folder numberThe folders are

collated in a manner that does not exclude the possibility for Investigator Silchenko to change and

add materials.

On 22 October 2009, Investigator O.F. Silchenko provided the defense with a complete copy of

Folder No. 2. This has been recorded in a receipt left with the investigator.

On 9 November 2009, Investigator I.A. Varganov produced, for review by S.L. Magnitskiy,

Folder No 2 of case No. 311578, which was considerably different from Folder No. 2 of the same

criminal case and other case folders that had been earlier shown to him and his defence, on 20

October 2009, by Investigator R.A. Gritsai.

In particular, all the folders shown to S.L. Magnitskiy on 20 October 2009, including Folder No.2, did not have covers; none of the copies of materials in the folders were certified by a special

mark, and a signature of an authorised person, directly on each copy. Instead, each folder

contained, after the last page of materials, a page signed by Investigator O.F. Silchenko stating

the number of collated and numbered materials in the folder and that the copies of materials were

correct. The ends of each string used to collate the folders were glued to that last page by white-

coloured paper containing seal No. 7 of the Investigative Committee of the Russian Interior

Ministry.


2/3

2

Folder No. 2, presented to S.L. Magnitskiy on 9 November 2009, was placed in a binder with

empty, unfilled dividers, made from hard carton, into which the Folder presented on 20 October

2009 could not have been collated into without breaking the original seal. That Folder No. 2

presented to S.L. Magnitskiy on 9 November 2009 was collated not with string as before, but

with a thread. The last page signed by O.F. Silchenko referring to authenticity of the copies and

the number of pages was missing.

Every page of Folder No. 2 presented on 9 November 2009 contained data that was absent from

all pages of Folder No. 2 presented on 20 October 2009, including the following:

a) Seal No. 7 of the Investigative Committee of the Russian Interior Ministry;b) A Stamp of the of Russian Interior Ministrys Investigative Committee saying this

copy is true;

c) Someones name, clearly not the name of O.F. Silchenko; a signature withoutindicating a full name and title of the person who signed it.

Therefore, the materials of criminal case No. 311578 that are currently presented to S.L.

Magnitskiy are not the same materials that were presented to him on 20 October 2009, because

there are noticeably differences in the manner that the authenticity of the copies is certified andthe manner of collating the materials; and in both cases the materials are collated in a manner that

does not preclude the opportunity to undo the binding, and add, delete or change materials. Given

the above, the defence does not exclude the possibility that these materials are also different in

their contents.

Based on the above stated, on the grounds that the materials of criminal case No. 311578,

currently being presented to S.L. Magnitskiy, are different from the materials shown to him on 20

October 2009, the defense states that on 20 October 2009 S.L. Magnitskiy and the defense were

presented with entirely dissimilar materials of the criminal case that are significantly different

from the materials of the case presented for review on 9 November 2009.

The above actions of the pre-trial investigation seriously violate the procedure for producingmaterials of a criminal case to the accused and the defence prescribed by interconnected

provisions of Articles 215 and 217 of the Criminal Procedural Code of Russia, from the contents

of which it follows that after the investigator has determined that all investigative actions into a

criminal case have been completed and that the gathered proofs are sufficient to prepare the

conclusions with an accusation, he notifies the accused about it and explains to the accused the

right to review all materials of the criminal case, and subsequently produces to the accused and

the defence these materials which must be collated and numbered. One has to accept that this

provision unequivocally precludes the possibility to undo the binding and change the materials

presented to the accused. Otherwise, this provision would have been rendered useless since,

pursuant to Article 217 of the Criminal Procedural Code of Russia, the investigator would then be

able to change and add proofs to the case thereby depriving the accused and the defence of their

right to study all gathered proofs, in contravention of the principle of equality between the

prosecution and defense.

The changes made to the case materials during the time period when the accused and the defence

were studying them provide evidence that the notification of the accused about the completion of

investigative actions, and the production of materials of the criminal case for review, was issued

prematurely and therefore illegally, because the materials of the criminal case were not

systematised and collated in the proper manner to begin the review of the materials pursuant to

Article 217 of the Criminal Procedural Code. Additionally, such actions can be viewed as an

attempt by the investigative bodies to make up for the lack of gathered proofs in the case which

would directly contradict Article 215 of the Criminal Procedural Code, in accordance with which


3/3

3

by the time the materials are given for review [to the accused], all proofs must have been gathered

by the investigator and those proofs must be sufficient to prepare an accusation.

The Criminal Procedural Law does not provide for adding materials from the investigation to the

case at the time when they are being studied [by the defence], except by way of submitting

corresponding petitions by a participant in the case in accordance with Article 219 of the

Criminal Procedural Code of Russia, in which situation an investigator is mandated in accordance

with p.2 of that Article to notify other participants in the case and provide them with anopportunity to review the additional materials of the criminal case. The investigative bodies have

not notified S.L. Magnitskiy and the defence about any petitions seeking any additional actions,

and an arbitrary adding of materials to the case by the investigator is not acceptable pursuant to

the above stated norms of the Criminal Procedural Code of Russia.

This position is supported by the Decree of the Russian Constitutional Court No 979-0-0 dated 16

July 2009, which upon consideration of a complaint from a citizen about the lack of a mandatory

provision in Article 217 of the Russian Criminal Procedural Code to produce all materials to the

accused and the defence at the very beginning of the review of the materials, stated: Part 1 of

Article 217 of the Russian Criminal Procedural Code contains a requirement upon an investigator

to produce to the accused and the defence collated and numbered materials of the criminal case.

Pursuant to Article 219 of the same Code adding materials to the case is not excluded but issubject to the filing of a corresponding petition (part one) and subsequent notification of the

accused and the defence about the completion of additional investigative actions and provision to

them of an opportunity to review the gathered materials (part two), therefore this provision does

not allow for an opportunity to arbitrarily add materials to the criminal case and produce

materials to the accused and the defence in an incomplete form.

For that reason, the actions of the investigator, who has effectively altered and possibly added

documents to the materials produced to the accused and the defence on 20 October 2009, and

which are described in this complaint, are unlawful and blatantly violate the right of the accused

and the defence for a fair investigation of the criminal case and for the state and judicial

protection of the rights and freedoms guaranteed by Articles 45 and 46 of the Russian

Constitution, and contravene the principles of criminal justice that call for equality of parties.

Based on the above and pursuant to Article 125 of the Criminal Procedural Code, we request:

1. Recognise as unlawful the actions of O.F. Silchenko, investigator of especially importantcases of the Investigative Committee of the Russian Interior Ministry involving changing

and adding to the criminal case materials after the materials have been produced [to the

defence] for review.

2. Require from investigator O.F. Silchenko to rectify these violations and fulfil theprovisions of Article 215 and 217 of the Criminal Procedural Code of Russia.

D.V. Kharitonov and E.A. Oreshnikova

Addendum:

Authority of Attorneys D.V. Kharitonov and E.A. Oreshnikova

Defence for S.L. Magnitskiy

last complaint by magnitsky's lawyers on fabrication of evidence by investigator silchenko...

Documents