The former head of the Ministry of Emergency Situations in the Kemerovo region, Alexander Mamontov, accused of criminal negligence that caused a fire in the Zimnyaya Cherry shopping center, could not prove in the Constitutional Court (CC) that he was illegally kept in a pre-trial detention center.
He attempted to question the rules of the law that allow choosing a precautionary action not by the judge handling the case. The Constitutional Court acknowledged that Art. 242 of the Criminal Procedure Code (invariance of the court's composition) and Art. 255 (decision on the choice of a preventive measure) are unchangeable.
The situation involving Mamontov and his supposed colleague, former chief state inspector of Kemerovo for fire supervision Grigory Terentyev, has been under review at the Central District Court of Kemerovo since December 2019. The former head of the regional Emergency Situations Ministry is in custody, and this preventive measure has been extended multiple times. In December 2020, Mamontov decided to contest the decision to continue the detention after the judge in his case, Inna Mikhailenko, fell ill and it was temporarily transferred to her colleague Alexander Vyalov.
The regular courts, where Mamontov originally requested, concluded that the extension of the preventive measure by a different judge was justified and due to exceptional reasons. According to Art. 242 of the Criminal Procedure Code, the principle of the court's composition not changing was not violated, as this requirement pertains to the trial and does not relate to interim decisions, such as extending the detention period.
Mamontov disagreed and turned to the Constitutional Court. He highlighted in the complaint that a judge who does not handle the case from the beginning may not be aware of all its details, and as a result, may not have enough information to decide on extending the preventive measure.
The Constitutional Court's decision states that in exceptional cases, the choice of a preventive measure can be made by judges not involved in the case. In support of this stance, the court referred to the separation of the preventive measure issue from the case's consideration. Transferring the case to another judge, in line with Part 2 of Art. 242 of the Criminal Code, would lead to an unjustified retrial in a different court composition, the COP concluded.
Yuri Nikolaev, the head of the Nikolaev and Partners board, states that the consideration of a preventive measure issue by a non-involved judge is a common, albeit not frequent, practice. He explains that complaints about this were widespread some time ago, and the issue worsened due to judges falling ill during the coronavirus pandemic. By accepting such a complaint and making a decision, the Constitutional Court was able to provide a clear interpretation of these provisions of the Criminal Procedure Code in order to prevent such appeals in the future, according to Nikolaev.
Dmitry Meshcheryakov, senior lawyer at BGP Litigation, agrees that there are not too many precedents with the replacement of judges, and calls the position of the Constitutional Court logical. Changing the rules would not affect the fate of Mamontov’s case, he adds.
Roman Pavlov, a partner at the Criminal Defense Firm, says that the Constitutional Court’s ruling may speak of “an extensive interpretation of the provisions of the Code of Criminal Procedure in favor of the prosecution.” According to the Constitution, he believes, no one can be deprived of the right to have his case heard by the judge whose jurisdiction it is assigned by law, and in the case of Mamontov, this judge was the one who began to consider the criminal case.
Mamontov is charged under Part 4 of Art. 160 of the Criminal Code (misappropriation or embezzlement on an especially large scale) and part 3 of Art. 293 (negligence resulting in the death of two or more persons). According to the investigation, from 2015 to 2018, Mamontov embezzled 1.9 million rubles, fictitiously employing people in the regional department of the Ministry of Emergency Situations. In addition, law enforcement officers believe that Mamontov and Terentyev knew about violations of fire safety in the Zimnyaya Cherry shopping center, but did not organize an inspection – this was one of the reasons for the tragedy. The fire broke out on March 25, 2018, killing 60 people.
