Alexander Mamontov Head of Kemerovo Emergency Situations Ministry will be punished for negligence – “Winter Cherry”

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 tried to challenge the norms of the law, which allow choosing a preventive measure not for the judge who considers the case on the merits. The Constitutional Court recognized that Art. 242 of the Code of Criminal Procedure (invariance of the composition of the court) and Art. 255 (decision on the issue of a measure of restraint).

The case of Mamontov and his alleged accomplice – the former chief state inspector of Kemerovo for fire supervision Grigory Terentyev – has been considered by the Central District Court of Kemerovo since December 2019. The ex-head of the regional Ministry of Emergency Situations is being held in a pre-trial detention center, and this preventive measure has been extended several times. Mamontov decided to challenge the decision to extend the arrest, made in December 2020: then the judge in his case, Inna Mikhailenko, fell ill and it was temporarily transferred to her colleague Alexander Vyalov.

The courts of general jurisdiction, where Mamontov initially applied, came to the conclusion that the extension of the measure of restraint by another judge was caused by objective, valid and exceptional reasons. Embedded in Art. 242 of the Code of Criminal Procedure, the principle of the immutability of the composition of the court, in their opinion, was not violated, since this requirement relates to the trial and does not apply to the adoption of interim decisions, in particular on the extension of the period of detention.

Mamontov did not agree with this and appealed to the Constitutional Court. He emphasized in the complaint that the judge, who does not accept the case for consideration from the very beginning, may not be aware of all its circumstances. Because of this, information may also not be enough to make a decision on extending the preventive measure.

The decision of the Constitutional Court says that “in exceptional cases” the issue of a measure of restraint can be decided not by the judges who are conducting the case. In support of this position, the court referred to the “procedural isolation” of the issue of a measure of restraint from the consideration of the case on the merits. Transfer of the criminal case to another judge, based on Part 2 of Art. 242 of the Criminal Code, would entail an unjustified repetition of the trial from the beginning in a different composition of the court, the COP considered.

Consideration of the issue of a measure of restraint by a judge who does not conduct a case is a common, though not frequent, practice, says Yuri Nikolaev, chairman of the Nikolaev and Partners board. Complaints about this were widespread some time ago, and the problem worsened due to illness of judges during the coronavirus pandemic, he says. By accepting such a complaint and issuing a decision, the Constitutional Court was able to establish an unambiguous interpretation of these provisions of the Code of Criminal Procedure in order to avoid such appeals in the future, Nikolaev notes.

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.