Last Updated on July 19, 2022 by LawEuro
The applicants in the present four cases complained that they had been convicted of drug-related offences which they had committed only because they had been incited to do so by agent provocateurs. Some applicants also complained that they had not been able to examine prosecution witnesses and that they had been subjected to covert audio surveillance during a test purchase of drugs.
THIRD SECTION
CASE OF ANZINA AND OTHERS v. RUSSIA
(Applications nos. 60757/12 and 3 others – see list appended)
JUDGMENT
STRASBOURG
19 July 2022
This judgment is final but it may be subject to editorial revision.
In the case of Anzina and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Peeter Roosma,
Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Russian nationals listed in the appended table (“the applicants”), on the various dates indicated therein;
the decision to give notice to the Russian Government (“the Government”) initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov, of the complaints concerning police entrapment, inability to examine prosecution witnesses and covert audio surveillance during an undercover operation and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated in private on 15 March 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The applicants in the present four cases complained that they had been convicted of drug-related offences which they had committed only because they had been incited to do so by agent provocateurs. Some applicants also complained that they had not been able to examine prosecution witnesses and that they had been subjected to covert audio surveillance during a test purchase of drugs.
THE COURT’S ASSESSMENT
I. JOINDER OF THE APPLICATIONS
2. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
3. The applicants complained that they had been convicted of drug-related offences which they had committed only because they had been incited to do so by agent provocateurs during an undercover operation.
4. The Government submitted that the application brought by the first applicant should be examined in accordance with the well-established case law of the Court on the matter. In respect of other applications, they submitted observations in which they contended that no violation of the applicants’ rights had taken place.
5. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
6. The Court has recently reiterated that that the Russian legal system does not provide for adequate and effective legal safeguards for authorising and supervising undercover operations, a structural problem which exposed applicants to arbitrary action by the police and prevented the domestic courts from conducting an effective judicial review of their entrapment pleas (see Kuzmina and Others v. Russia, nos. 66152/14 and 8 others, 20 April 2021, with further references). The present case is identical to other Russian cases on entrapment, in which the Court found in the past violations on account of deficiencies in procedure for authorising undercover operations in the context of investigating offences concerning illegal distribution of drugs (see Lagutin and Others v. Russia, nos. 6228/09 and 4 others, 24 April 2014, and Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, 2 October 2012).
7. In particular, in so far as the substantive test for incitement is concerned, it follows from the material of the applicants’ case files that the test purchases of drugs were ordered by simple administrative decisions of the bodies which later carried out the undercover operations; those decisions contained very little information as to the reasons for and purposes of the planned undercover operations, and the operations were not subjected to judicial review or any other independent supervision. There was no need to justify the decision with relevant details and virtually no formalities to follow, which exposed to the applicants to risk of entrapment (see Kuzmina and Others, cited above, § 101). As regards the procedural test for incitement, the first-instance courts referred, in general, to the operational information and they did not inquire what incriminating material exactly the police had in respect of the applicants, no attempt was made to verify the sources of such information and in some cases (see Appendix), the courts did not examine witnesses for prosecution who were involved in the undercover operations. Nor did they assess the manner in which the police and their informers had interacted with the applicants. The courts focused their inquiry mainly on the applicants’ demeanour during the test purchase and held that their actions indicated that they had had a predisposition to commit crime, without, at the same time, duly assessing whether the police officers or their informers indeed confined themselves to investigating criminal activity in an essentially passive manner. Therefore, the judicial review of the applicants’ cases fell short of the standards developed in the Court’s case-law in the light of Article 6 of the Convention (contrast Manelyuk and Others v. Russia [Committee] nos. 40442/07 and 3 others, §§ 34, 38-39 and 40-42, 8 October 2019). The appeal courts, for their part, merely reiterated the reasoning of the first‑instance courts and held that the applicants’ pleas were unsubstantiated.
8. Accordingly, the Court finds no reason to depart from its earlier findings on the matter and holds that the criminal proceedings against all four applicants in the present case were incompatible with the notion of a fair trial. Having regard to its well-established case-law on the subject, the Court considers that there has been a violation of Article 6 § 1 of the Convention in respect of each of the four applicants.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION UNDER THE WELL-ESTABLISHED CASE-LAW
9. The applicants in applications nos. 60757/12, 53524/14 and 54122/16 also complained under Articles 6 §§ 1 and 3 (d) about the lack of opportunity to examine prosecution witnesses against them and the applicant in application no. 29301/16 complained under Article 8 that the police had been listening to his telephone conversation with their agent without judicial authorisation (see Appendix for details). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that these complaints are covered by the well‑established case-law of the Court and disclose a violation of Articles 6 §§ 1 and 3 (d) and Article 8 of the Convention (see Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011; Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015; and also Zubkov and Others v. Russia, nos. 29431/05 and 2 others, 7 November 2017).
JUST SATISFACTION
10. The applicants claimed the amounts indicated in the appended table in respect of pecuniary and non-pecuniary damage and in respect of costs and expenses incurred before the domestic courts and before the Court.
11. The Government submitted that those claims should be settled in accordance with the well-established case law of the Court.
12. The Court rejects the claim for pecuniary damages brought by Ms Anzina (no. 60757/12), having regard to the documents in its possession.
13. Furthermore, the Court reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be a retrial or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV). Given the Court’s findings in Kumitskiy and Others v. Russia, nos. 66215/12 and 4 others, § 17, 10 July 2018, the finding of a violation under Article 6 constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicants in the present cases (see also Zadumov v. Russia, no. 2257/12, §§ 80-81, 12 December 2017). At the same time the Court observes that Mr Chriva (no. 29301/16) sustained non‑pecuniary damage as a result of the violation of his rights under Article 8 of the Convention which cannot be compensated for solely by the finding of violation, and that compensation therefore has to be awarded. Regard being had to the documents in its possession and to its case law (see, in particular Zubkov and Others, cited above), the Court considers it reasonable to award the sum indicated in the appended table to Mr Chirva (application no. 29301/16), in respect of non‑pecuniary damage.
14. The Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-71, 28 November 2017). Accordingly, having regard to the documents in its possession and making its assessment on an equitable basis, it awards the sum indicated in the appended table to Mr Chernopiskiy (no. 54122/16), in respect of costs and expenses. The other applicants in the present case who claimed the reimbursement of costs and expenses did not submit any documents, such as legal services agreements, clearly showing that they had paid or were under a legal obligation to pay the fees charged by their representatives. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed have actually been incurred by those applicants and rejects their claim for costs and expenses (see, among others, Udaltsov v. Russia, no. 76695/11, § 201, 6 October 2020, and Mazepa and Others v. Russia, no. 15086/07, §§ 89-90, 17 July 2018).
15. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all applicants on account of the police entrapment;
4. Holds that there has been a violation of Articles 6 §§ 1 and 3 (d) and 8 of the Convention as regards the other complaints raised under the well‑established case-law of the Court (see paragraph 9 above);
5. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants as a result of violation of Article 6 under all heads;
6. Holds
(a) that the respondent State is to pay to each applicant concerned within three months, the amounts indicated in the appended table, plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage and in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 19 July 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli
Deputy Registrar President
____________
APPENDIX
List of cases
No. |
Application no. Lodged on Applicant name Year of birth Place of residence Represented by |
Offence (in relation to agent provocateur complaint) Other complaints under the well‑established case law |
Domestic Proceedings | Claims made by the applicants | Claims granted by the Court |
| 1. | 60757/12 03/09/2012 Yekaterina Olegovna ANZINA 1991 Stavropol Self-representation |
sale of drugs (cannabis 8g) prosecution witnesses Mr Sh,, Mr Pr., Mr M.S.V. and Mr M.S.A. were not present and not questioned at the trial |
The Promyshlenniy District Court of Stavropol, 12 January 2012; The Stavropol Regional Court, 14 March 2012. |
RUB 1,475,000 (about EUR 16,000) in respect of pecuniary damage EUR 20,000 in respect of non-pecuniary damage RUB 8,000 (about EUR 88) in respect of costs and expenses |
none |
| 2. | 53524/14 08/07/2014 Sergey Aleksandrovich MALOMOZHNOV 1984 Ufa Self-representation |
sale of drugs (mixture with metilendioksipirovaleon- 1.40 gr) prosecution witness (buyer) K. was not present and not questioned at the trial |
The Oktyabrskiy District Court of Ufa of the the Republic of Bashkortostan, 18 March 2013; The Supreme Court of the Republic of Bashkortostan, 26 February 2014. |
EUR 50,000 in respect of non-pecuniary damage RUB 500,000 (about EUR 6,000) in respect of costs and expenses |
none |
| 3. | 29301/16 17/05/2016 Yevgeniy Gennadyevich CHIRVA 1993 Moscow Irina Aleksandrovna SEREBRYAKOVA |
sale of drugs (amphetamine, 0.35 g) active listening in by the police officers, attesting witnesses and witnesses to the applicant’s telephone conversation with the agent of the police, Ms O., during the undercover operation, by means of putting the agent’s phone on loudspeaker mode |
The Timiryazevsky District Court of Moscow, 15 September 2015; The Moscow City Court, 09 December 2015. |
EUR 10,000 in respect of non-pecuniary damage | EUR 7,500 in respect of non-pecuniary damage |
| 4. | 54122/16 07/09/2016 Sergey Dmitriyevich CHERNOPISKIY 1981 Sosnovyy Bor Gennadiy Ivanovich POPOV |
sale of drugs (cannabis, 70.5 g) prosecution witness V. who was an intermediary in the test purchase was not present and not questioned in the proceedings |
The Krasnogvardeysky District Court of St. Petersburg, 21 September 2015; The St. Petersburg City Court, 13 April 2016. |
EUR 4,000 in respect of non-pecuniary damage EUR 8,925 in respect of costs and expenses for representation in the domestic proceedings and the proceedings before the Court |
EUR 1,000 in respect of costs and expenses for the domestic proceedings, to be paid directly to the applicant, and EUR 1,000 in respect of costs and expenses for the proceedings before the Court, to be paid directly to the applicant’s representative’s bank account |
Leave a Reply