A Secret Investigation Is a Crime

Radio Echo Moskvy, 24 January 2012
Attorney Vladimir Krasnov

On 24 January, the Vedomosti daily published an article that in fact says that the former president of the Bank of Moscow Andrei Borodin is under investigation not only in connection with a criminal case concerning a credit issued to the Premier Estate Closed Joint-Stock Company but also a number of other cases.

The official and the only version known to the defence team is Criminal Case #89816, opened in December of 2010, under which a new order was issued on 29 September 2011 to prosecute Mr Borodin on a fraud charge (Part 4 of Article 159 of the Criminal Code of the Russian Federation). The defence team was notified about the order in a form that fails to comply with legislation.

Initially, Mr Borodin was being charged of abuse of authority (Part 2 of Article 201 of the Criminal Code of the Russian Federation) under the same case. The investigation was alleging that certain unidentified individuals had deceived the top management of the Bank of Moscow, i. e. Mr Borodin himself, as a result of which the ill-fated credit was issued and most of it ended up on personal accounts of Yelena Baturina, remitted by the Premier Estate Company. Precisely that charge served as the basis to remove Mr Borodin from the post of president of the Bank of Moscow and make him internationally wanted and to choose the measure of restraint in the shape of taking into custody (in absentia) and arrest his property. (By the way, back then the investigator refused to give me access to the case, and I had to seek a judicial decision which recognized that the investigator’s actions were unlawful.)

According to the new charge, it is now Mr Borodin who “misled” unnamed shareholders of the Bank of Moscow, not certain evil-doers who deceived Mr Borodin. The fate of the money and Mr Borodin himself did not change in the process. Former Moscow Mayor Yuri Luzhkov has been repeatedly interviewed under this case. The investigation is widely covered in the press, and both the investigation and the defence teams are not keeping it secret.

It follows from the Vedomosti story that the law-enforcement agencies are working on three (!) criminal cases against Mr Borodin. It is alleged that back on 30 September 2011 Mr Borodin was made defendant in a criminal case relating to the sale of two shares of the Stolichnaya Strakhovaya Gruppa Open Joint-Stock Company and was allegedly charged under Article 165 of the Criminal Code of the Russian Federation (infliction of property loss by means of fraud or misuse of trust, punishable by up to five years of imprisonment).

Read my lips: No such charge has been brought against Mr Borodin. Moreover, a certificate received by the Defence team at the very end of 2011 from the Ministry of Internal Affairs says that he is the defendant in a single criminal case, the same old fraud case.

On 17 January 2012 the official Web site of the Russian Interior Ministry published a report with this subject line: “Criminal Investigation Concerning Money Stolen from the Bank of Moscow is Continuing.” It states, in particular, that some of the transactions with shares of the InvestLesProm Closed Joint-Stock Company when analysed “enable one to speak about the presence of signs of a crime corresponding to Part 2 of Article 201 of the Criminal Code of the Russian Federation in the actions of the former president of the Bank of Moscow Andrei Borodin” and says that Mr Borodin has allegedly acquired the company’s shares “as a result of a crime.” The investigators do not comment that, and the defence team has stated that it knows nothing about such a charge and it considers it as evidence of the violation of Mr Borodin’s constitutional rights, including the right to defence. Now, here is another piece of news.

Pursuant to Paragraph 22 of Article 5 of the Code of Criminal Procedure of the Russian Federation, “a charge is an assertion that a certain individual has committed an act prohibited by criminal law made in the procedure established by this Code.” The Code of Criminal Procedure establishes that defendant is an individual with respect to whom there has been passed a resolution on prosecuting him/her as a defendant (Paragraph 1 of Part 1 of Article 47). The individual must be indicted no later than 72 hours from the date when such a resolution was passed, in the presence of the individual’s defence lawyer (Part 1 of Article 172). Clearly, the deadline has not been met as far as both the second and the third “charge” is concerned, and the legal procedure was not followed. Legislation prescribes strict requirements concerning actions of officials dealing with indictment, which requirements are called to ensure the defendant a real chance to “know what (s)he is accused of” for the individual to be able to use the constitutional right to defence.

Mr Borodin is deprived of the right.

The media have reported that the new owner (VneshTorgBank – VTB) and the top management of the Bank of Moscow have submitted to law-enforcement agencies more than 20 reports on violations they allegedly have discovered in the operation of the former managers. Their fate is unknown, but law says that a procedural decision on a crime report must be made no later than 72 hours from the day it came in, and the person who has submitted the crime report must be notified accordingly, whereas the individual against whom a criminal case is opened shall be notified about that immediately. Clearly, not everything is done here as due either.

In these conditions, another question arises: What is written in Russia’s request addressed to Interpol concerning international search for Mr Borodin? What additional “crimes” are mentioned there?

The story relevant to the Bank of Moscow attracts public interest, which is natural. The government has allocated 285 billion roubles to bail it out, and if we take into account the expenses of VTB, also a state-owned bank, the sum will become even more enormous. Mr Borodin’s criminal prosecution, as designed by its initiators, must confirm that the state allocated the no small funds in times of a crisis for a good reason and commensurate with the scale of the alleged violations. If, however, law is not abided by in the process, the suspicion that not all of the intentions of the people taking part in this story are squeaky clean turns into assuredness. After rather confused explanations that the information about the country’s President’s alleged interest in the bank’s take-over (reported, by the way, by not only Mr Borodin but also other people) is wrong and after it became known that the budget of Moscow suffered significant losses as a result of the transaction because it received money (more than 100 billion roubles) from VTB far from immediately, it seemed that law-enforcement agencies at least for those reasons alone, let alone law, have no right to give grounds for anyone to doubt that their intentions are clean.

What the Vedomosti has reported today and what the Russian Interior Ministry publicly acknowledged on its Web site on 17 January 2012 is a secret investigation, i. e. an act prohibited by law and committed by official whose official duty is not only to abide by law but also protect it from unlawful attempts. And here, we are talking about not only Mr Borodin’s violated rights but also more general problems. Where are the guarantees that an uncertain circle of Russian citizens is not found in a similar situation?

The information reported in the Vedomosti is true. The awkward and wittingly false explanations cited in the publication confirm that. One had to think hard to come up with this: a notification allegedly shall be sent by the investigators to the individual whom they themselves have proclaimed internationally wanted! Consequently, we are dealing with facts of a most brazen violation of law containing hallmarks of malfeasance in public office.

Under law, press reports about the existence of data pointing to signs of crime are grounds for opening a criminal case, which must be investigated in the established procedure. Mr Borodin’s defence team will insist on precisely such a development of this story.

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