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Complaint by the lawyers of Sergey Magnitskiy regarding thefabrication of evidence by Investigator Silchenko
Accepted by Tverskoi District Court of MoscowOn 13 November 2009
To The Tverskoi District Court of MoscowFrom Attorneys of Moscow Collegium of LawyersD.V. Kharitonov and E.A. OreshnikovaRe: Actions by Major O.F. Silchenko,Investigator of Especially Important Cases,The Investigative Committee of the Russian Interior MinistryIn Defence of S.L. MagnitskiyPursuant to Criminal Case 311578from Criminal Case 153123COMPLAINT(pursuant to Article 125 of the Russian Criminal Procedural Code)Major O.F. Silchenko, Investigator of Especially Important Cases of the Investigative Committeeof 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-trialinvestigation was completed and on 20 October 2009, pursuant to Article 217 of the CriminalProcedural Code, he was shown the materials of the criminal case which were collated andnumbered. After the defense and the accused S.L. Magnitskiy reviewed the materials of thecriminal 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 thelast page in each folder is signed; it is left blank and states the folder number…The folders arecollated in a manner that does not exclude the possibility for Investigator Silchenko to change andadd 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 samecriminal case and other case folders that had been earlier shown to him and his defence, on 20October 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 specialmark, and a signature of an authorised person, directly on each copy. Instead, each foldercontained, after the last page of materials, a page signed by Investigator O.F. Silchenko stating
 
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the number of collated and numbered materials in the folder and that the copies of materials werecorrect. 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 InteriorMinistry.Folder No. 2, presented to S.L. Magnitskiy on 9 November 2009, was placed in a binder withempty, unfilled dividers, made from hard carton, into which the Folder presented on 20 October2009 could not have been collated into without breaking the original seal. That Folder No. 2presented to S.L. Magnitskiy on 9 November 2009 was collated not with string as before, butwith a thread. The last page signed by O.F. Silchenko referring to authenticity of the copies andthe number of pages was missing.Every page of Folder No. 2 presented on 9 November 2009 contained data that was absent fromall 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 Ministry’s Investigative Committee saying “thiscopy is true”;c)
 
Someone’s 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, becausethere 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 thatdoes not preclude the opportunity to undo the binding, and add, delete or change materials. Giventhe above, the defence does not exclude the possibility that these materials are also different intheir 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 20October 2009, the defense states that on 20 October 2009 S.L. Magnitskiy and the defense werepresented with entirely dissimilar materials of the criminal case that are significantly differentfrom 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 interconnectedprovisions of Articles 215 and 217 of the Criminal Procedural Code of Russia, from the contentsof which it follows that after the investigator has determined that all investigative actions into acriminal case have been completed and that the gathered proofs are sufficient to prepare theconclusions with an accusation, he notifies the accused about it and explains to the accused theright to review all materials of the criminal case, and subsequently produces to the accused andthe defence these materials which must be collated and numbered. One has to accept that thisprovision unequivocally precludes the possibility to undo the binding and change the materialspresented 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 beable to change and add proofs to the case thereby depriving the accused and the defence of theirright to study all gathered proofs, in contravention of the principle of equality between theprosecution and defense.The changes made to the case materials during the time period when the accused and the defencewere 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 issuedprematurely and therefore illegally, because the materials of the criminal case were not
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