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ЖАЛОБА

на постановление об отказе в возбуждении уголовного дела

Translation from Russian

Applicant:
citizen of the United States of America
Helmer John
residing at:
Russia, Moscow, Khoroshevskoye shosse,
68, bld. 1, apartment 32

The representative of the Applicant:
citizen of Russia
Kuznetsov Oleg Nikolayevich
residing at:
Russia, Moscow, Dmitrovskoye shosse,
13A, apartment 308

Other persons involved in the case:
Head of the OVD of the Khoroshevsky raion
of Moscow,
Police Colonel K.Kh. Botashev

senior authorized operations officer of the OVD of the Khoroshevsky raion
of Moscow,
Senior Lieutenant
Yudenkov A.N.

APPEAL
in response to the Ruling to dismiss the criminal case

On December 28, 2009 the Applicant, U.S. citizen John Helmer, filed an application addressed to the Head of the OVD of the Khoroshevsky raion of Moscow police colonel K.H. Botashev. In the document the Applicant requested to take measures on the fact of the attempts taken by unknown persons to enter into contact with the Applicant in circumstances which in the opinion of the Applicant could threaten his life and safety.

The application was registered on December 28, 2009 in the KUSP of the OVD of the Khoroshevsky raion of Moscow at number 10916, which is confirmed with the appropriate stamp on the above described application and voucher-notification (see Appendices 1 and 2 of the present Appeal).

After consideration of the application mentioned above senior authorized operations officer of the OVD of the Khoroshevsky raion of Moscow, senior lieutenant Yudenkov A.N. on January 5, 2010 made a Ruling to dismiss the criminal case, which was approved on January 05, 2010 by the Head of the OVD of the Khoroshevsky raion of Moscow police colonel K.H. Botashev (see Appendix 3 of the present Appeal).

In accordance with item 2 of Article 145 of the Criminal Procedure Code of Russia, the decision taken after considering the report about crime, the inquiry body, the inquiry officer, the investigator, and the head of the investigating body shall inform the applicant. The Applicant should have received explanation of his right of appeal and the procedure for appealing the decision taken.

Furthermore, in accordance with item 4 of Article 7 of the Criminal Procedure Code of Russia the Rulings of the investigator and the inquiry officer should be lawful, substantiated and properly reasoned.

The applicant believes that the Ruling to dismiss the criminal case on his application was made in violation of the laws of the Russian Federation and shall be cancelled for the following reasons:

(1) The Ruling being appealed was made without notice to the Applicant as to the decision on his application, without clarification of the right and order of appeal.

The following facts prove the indicated circumstances:

(a) the Ruling was received by the representative of the Applicant only after his personal application to the OVD of the Khoroshevsky raion of Moscow on February 03, 2010.

(b) neither the Ruling nor any other document explains to the Applicant personally or to his representative the right to appeal, or the appeal procedures provided by the operating law of the Russian Federation.

(2) The Ruling being appealed is unfounded in its content.

Thus, the Ruling being appealed:

(a) contains internal contradictions;

(b) does not fully reflect the facts stated by the Applicant in his explanations at the OVD of the Khoroshevsky raion of Moscow.

The inner contradictions of the Ruling are as follows: the Ruling reflects the applicant’s explanation, according to which he, through the window of his apartment had seen an unknown man, later identified as Yakovchenko V., who called him via the house intercom for 5 – 10 minutes, and then walked away from the entrance and got into a car parked nearby, where there were two unknown people. Putting it differently, the unknown man who had called via the intercom, subsequently identified as Yakovchenko V., as soon as he came to the car, he joined two persons, which was indicated in the explanations of the Applicant. Meanwhile, according to the testimony of Yakovchenko V., reflected in the Protocol, when Yakovchenko V., got in the car, he was in the presence of the driver alone, and only when he got into the car, he called a certain friend who probably did not come over immediately (judging from the explanation given by V. Yakovchenko and indicated in the Protocol).

The Ruling does not give any assessment of the fact that seven days earlier, on December 21, 2009, an unknown man called at the door of the Applicant’s apartment and identified himself as an employee of the FSB of Russia and stated that he wished to talk directly with the Applicant on a purpose he stated to be “secret”. Meanwhile, the Applicant is aware that Turitsina T. gave an explanation of that fact at the OVD of the Khoroshevsky raion of Moscow in connection with the above mentioned statement. Moreover, it is known that Turitsina T. pointed out that the man who had identified himself as a member of the FSB of Russia called himself Yakovchenko. Yet these facts are not reflected in the Ruling, and obvious comparisons have not been drawn, and corresponding operational activities (such as identification) were not carried out.

(3) The Ruling being appealed is unfounded in its essence:

According to the Ruling being appealed, during the inspection of the vehicle where there were the persons to whom the Applicant pointed as “suspicious” 6 A4 paper sheets were found. Without describing their contents, the Ruling actually ignores the fact that one of the extracted sheets contains a reference to the fact that some persons, apparently connected with Alfa-Inform, the company whose employees were the individuals who subsequently were identified as Yakovchenko V. and Sharendo, were gathering information about the Applicant, his physical location and daily movements, and his private life (see Appendix 4 of the present Appeal) which, according to the applicant, contains evidence of elements of crime specified in Article 137 of the Criminal Code of Russia:

Article 137. Invasion of Personal Privacy
1. Illegal collection or spreading of information about the private life of a person which constitutes his personal or family secrets, without his consent, or the distribution of this information in a public speech, in a publicly performed work, or in the mass media, if these acts have been committed out of mercenary motives or any other personal interests, and have caused harm to the rights and legally-protected interests of individuals,
shall be punishable by a fine in the amount of 200 to 500 minimum wages, or salaries or in the amount of the wage or salary, or any other income of the convicted person for a period of two to five months, or by compulsory works for a term of 120 to 180 hours, or by corrective labour for a term of up to one year, or by arrest for a term of up to four months.
2. The same acts committed by a person through his official position,
shall be punishable by a fine in the amount of 500 to 800 minimum wages, or salaries or in the amount of the wage or salary, or any other income of the convicted person for a period of five to eight months, or by deprivation of the right to hold specified offices or to engage in specified activities for a term of two to five years, or by arrest for a term of four to six months.

Taking into account that some time before the event described in the statement, a purported member of the FSB of Russia who identified himself as Yakovchenko, tried to meet the applicant and under the pretext of negotiations with him he tried to enter the dwelling of the applicant, then (provided that the member of the FSB and the interrogated Yakovchenko V. are the same person) according to the Applicant, the actions of the interrogated Yakovchenko V. can also be seen as containing the elements of crime according to Article 139 of the Criminal Code of Russia.

Article 139. Violation of the Inviolability of the Home
1. Illegal intrusion in to a home, committed against the will of the person residing in it,
shall be punishable by a fine in the amount of 50 to 100 minimum wages, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to one month, or by compulsory works for a term of 120 to 180 hours, or by corrective labour for a term of up to one year, or by arrest for a term of up to three months.
2. The same act committed with the use of violence or the threat of its use
shall be punishable by a fine in the amount of 200 to 500 minimum wages, or in the amount of the wage or salary, or any other income of the convicted person for the period of two to five months, or by deprivation of liberty for a term of up to two years.
3. Acts specified in the first or second parts of this Article, and committed by a person through his official position, –
shall be punishable by a fine in the amount of 500 to 800 minimum wages, or in the amount of the wage or salary, or any other income of the convicted person for a period of five to eight months, or by deprivation of the right to hold specified offices or to engage in specified activities for a term of two to five years, or by arrest for a term of two to four months, or by deprivation of liberty for a term of up to three years.
Note. For the purposes of the present article and other articles of the present Code, the term “dwelling” means an individual residential house complete with residential and non-residential premises attached thereto, residential premises, irrespective of the form of ownership included in residential facilities fit for permanent or temporary living quarters and equally other premises or a structure not included in residential facilities stock but intended as temporary living quarters.

It should be also borne in mind that the applicant is a journalist. If we take into account that the Ministry of Foreign Affairs of Australia had informed the applicant of a possible threat to his security, and then a purported member of the FSB of Russia named Yakovchenko called at the door of his apartment, and then another Yakovchenko (presumably the same one) tried to contact him again acting on behalf of Alfa-Inform, a company positioning itself as the market leader in security services, then the investigative body, had the professional duty and lawful obligation to investigate the purpose of such interest in the person of the Applicant by persons not connected with the world press in the least. On the evidence obtained by OVD from Yakovchenko and others, the investigation subsequently undertaken should not have excluded that Yakovchenko’s interest in the life and physical whereabouts of the applicant were caused by circumstances related to the applicant’s professional activities and, consequently, may have been an attempt to prevent his professional activities, which would contain elements of crime according to Article 144 of the Criminal Code of Russia.

Article 144. Obstruction of the Lawful Professional Activity of Journalists
1. Obstruction of the lawful professional activity of journalists by compelling them to give out information or to refuse to give out it –
shall be punishable by a fine in the amount of 50 to 100 minimum wages, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to one month, or by compulsory works for a term of up to 180 hours, or by corrective labour for a term of up to one year.
2. The same act committed by a person through his official position,
shall be punishable by corrective labour for a term of up to two years, or by deprivation of liberty for a term of up to three years, with disqualification to hold specified offices or to engage in specified activities for a term of up to three years, or permanent disqualification.

In this regard, particular attention should be paid to the explanations given by the Applicant during the interrogation, carried out by the OVD of the Khoroshevsky raion immediately after Yakovchenko and the persons connected with him were detained, in which the Applicant, answering the direct question of the interrogator about his relationship with the company Rusal, indicated that the warning by the Australian Foreign Ministry, and Yakovchenko’s attempts to engage in direct physical contact with the applicant on December 21 and 28, 2009, occurred during the time when the applicant was publishing articles on the United Company Rusal prior to the placing of the company’s shares on the Hong Kong Stock Exchange. Taking into account that during this period the employees or persons otherwise connected with the United Company Rusal – German Vladimirovich Tkachenko and Vera Kurochkina – demonstrated their will to influence the applicant’s publications, the presence of links to Rusal in one of the sheets recovered from the car where there were employees of Alfa-Inform indicates a chain of connection between Yakovchenko’s attempts to engage in physical contact with the applicant, the client relationship between Rusal and Alfa-Inform, and the applicant’s activities as a journalist associated with the publications on Rusal, which should have been examined.

Meanwhile, the fact that Rusal is the entity which had ordered the report on the activities, physical whereabouts, and life of the applicant, was confirmed by Yakovchenko and by Usanov Igor Yevgenyevich, who (on the contrary to the information indicated in the Ruling being appealed) turned up at the OVD of the Khoroshevsky raion of Moscow and acted as a lawyer (attorney) of the detainees and Alfa-Inform. They also provided evidence that all the actions of employees of Alfa-Inform, carried out in relation to the Applicant, were paid by the client Rusal.

All of the facts mentioned above, according to the Applicant, demonstrate that the Ruling was made in violation of the Criminal Procedure Code of Russia, without regard to the circumstances of the subject of inquiry.

Based on the facts mentioned above, according to Article 125 of the Criminal Procedure Code of Russia I ask the court to:

1. Recognize the Ruling on dismissal of the criminal case on January 5, 2010 as unlawful and unfounded;

2. Compel the authorities of the OVD of the Khoroshevsky raion of Moscow to hold a new inquiry into the facts indicated in this appeal.

Appeal on the basis of the warrant of attorney dated January 22, 2010 signed by Kuznetsov Oleg Nikolayevich

Attachments:

(1) A copy of the application to the OVD of the Khoroshevsky raion of Moscow
(2) A copy of the coupon-notification of acceptance of the application by the OVD of the Khoroshevsky raion of Moscow
(3) A copy of the Ruling on refusal to open a criminal case dated January 5, 2010
(4) A copy of the A4 sheet found in the car where Yakovchenko V. was at the moment of inspection;
(5) A copy of the warrant of attorney for the name of Kuznetsov O

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