YEREMTSOV AND OTHERS v. RUSSIA - 20696/06 22504/06 41167/06 6193/07 18589/07 - Committee Judgment [2014] ECHR 1339 (27 November 2014)

In the case of Yeremtsov and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Khanlar Hajiyev, President,
          Erik Møse,
          Dmitry Dedov, judges,
and Søren Prebensen, Acting Deputy Section Registrar,

Having deliberated in private on 4 November 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in five applications (nos. 20696/06, 22504/06, 41167/06, 6193/07 and 18589/07) 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 five Russian nationals. The application numbers, the dates of lodging the applications and the dates of their communication, the applicants’ names, their personal details and the names of their legal representatives as well as the information as to the relevant domestic judgments are set out in Appendix below.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicants each alleged that they had been convicted of drug offences following entrapment by the police in violation of Article 6 of the Convention. Mr Nikitin (application no. 41167/06) also complained under Article 6 § 3 (d) that he had not been able to examine the witness against him.

4. On the dates indicated in the Appendix the President of the First Section decided to give the notice of the applications to the Government. In accordance with Article 26 § 1 of the Convention as amended by Protocol No. 14, the applications were assigned to a Committee of three Judges. It was also decided that the Committee would rule on the admissibility and merits of the applications at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing.

6. The applicants disagreed with their conviction and argued that the police incited them to commit drug-related offences.

II. RELEVANT DOMESTIC LAW

7. The relevant domestic law governing the use of undercover techniques at the material time is summed up in the Court’s judgments in the cases of Lagutin and Others v. Russia, nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, 24 April 2014; Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, 2 October 2012; Bannikova v. Russia, no. 18757/06, 14 October 2010; Vanyan v. Russia, no. 53203/99, 15 December 2005; Khudobin v. Russia, no. 59696/00, ECHR 2006-... (extracts).

THE LAW

I. JOINDER OF THE APPLICATIONS

8. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical issues under the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

9. The applicants complained that they had been unfairly convicted of drug offences that they had been incited by the police to commit and that their plea of entrapment had not been properly examined in the domestic proceedings, in violation of Article 6 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

10. The Government submitted that Mr Mordvinov and Mr Kuznetsov (application nos. 6193/07 and 18589/07) who were each convicted of two episodes of sale of drugs could no longer claim to be victims of the alleged violation. In particular, the Government argued that the domestic courts had reopened the criminal proceedings in both cases and mitigated the sentences imposed for the first episode of drug sale following test purchase. The domestic courts had also vacated each of the applicants’ conviction in relation to the second episode.

11. Mr Mordvinov and Mr Kuznetsov acknowledged that the domestic courts had re-examined the cases in their favour in the new proceedings. However, they argued that the domestic courts had not properly addressed their pleas of entrapment and as a result, the conviction on the first episode of drug sale had stayed. Therefore, they had not lost their victim status.

1. General principles of the Court’s case-law regarding loss of victim status

12. The Court reiterates that favourable measures adopted by the domestic authorities will deprive the applicant of victim status only if the violation is acknowledged expressly, or at least in substance, and if it is subsequently redressed (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 67, 2 November 2010, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006-V (with references cited therein)).

13. The redress must be appropriate and sufficient, depending on all the circumstances of a particular case (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).

14. The alleged loss of the applicant’s victim status involves an examination of the nature of the right in issue, the reasons advanced by the national authorities in their decision and the persistence of adverse consequences for the applicant after the decision (see Sakhnovskiy, cited above, § 67).

15. In recent cases against Russia on undercover operations, the Court has referred to its settled case-law and has noted that when an applicant has suffered an infringement of his rights 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, the reopening of the proceedings would, in principle, be the most appropriate form of redress if requested (see Lagutin and Others, § 133, and Veselov and Others, § 134, both cited above).

16. The Court also held that when confronted with a plausible and even arguable allegation of entrapment the domestic courts have an obligation to establish in adversarial proceedings the reasons why the operation had been mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected (see Lagutin and Others, cited above, § 118, citing Ramanauskas v. Lithuania [GC], no. 74420/01, § 71, ECHR 2008). The Court further noted that the entrapment plea could not be examined without requesting all relevant materials concerning the allegedly pre-existing “operational information” incriminating the applicants prior to the undercover operations and questioning the undercover agents about the early stages of their infiltration (see Lagutin and Others, cited above, §§ 118 and 121).

2. Application of these principles to the present case

17. Turning to the facts of Mr Mordvinov’s and Mr Kuznetsov’s applications, the Court notes that the domestic courts indeed reopened the proceedings and re-examined the cases in their favour. However, in the light of Article 6 of the Convention and respective case-law of the Court, it appears that the domestic courts did not examine the applicants’ pleas of entrapment effectively. As a result, they were not in the position to establish conclusively whether a violation, if any, of the applicants’ Article 6 rights took place and consequently, they could not possibly acknowledge it and offer appropriate and sufficient redress to Mr Mordvinov and Mr Kuznetsov.

18. In particular, when during the re-examination proceedings the domestic courts were confronted by Mr Mordvinov’s and Mr Kuznetsov’s pleas of entrapment as to the both episodes of drug sale, they simply reiterated the reasoning of the first-instance court in relation to the first episode and held that only second test purchase of drugs had amounted to entrapment because it had pursued no legitimate goal, such as crime detection and prevention.

19. The review of the applicants’ cases, albeit somewhat favourable for them in the outcome, was nevertheless inadequate as it fell short of the standards developed in the Court’s jurisprudence. The domestic courts did not examine the essential arguments of the applicants’ complaints, namely, that the police had had no valid reasons to mount each of the undercover operations and that they had impermissibly incited the applicants to sell drugs. They did not request any materials concerning the substance of incriminating operational information and accepted just the uncorroborated statements of police officers to that effect.

20. Thus, it can be said that the re-examination of Mr Mordvinov’s and Mr Kuznetsov’s cases did not put them in the position in which they would have been had the domestic courts reviewed their complaints in a manner compatible with the requirements of Article 6 reiterated above. In such circumstances, the domestic courts had no opportunity to establish whether or not violations took place. Therefore, the domestic courts could not offer Mr Mordvinov and Mr Kuznetsov appropriate and sufficient redress and they remain to be victims of the alleged violation of Article 6.

21. The Court finds that the complaints regarding entrapment brought by all five applicants under Article 6 § 1 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

22. The Government did not submit any comments on the merits in the cases of Mr Mordvinov and Mr Kuznetsov (application nos. 6193/07 and 18589/07). With regard to the remaining three applications, the Government claimed that the test purchases conducted in each of them had been lawful and had involved no entrapment by police. They maintained that the police had ordered the test purchases on the basis of incriminating confidential information and that the applicants voluntarily had agreed to sell drugs. They also submitted that the applicants had their cases reviewed by the domestic courts and that they had been provided with necessary procedural safeguards in the course of proceedings.

23. Each of the five applicants claimed that the police had no reasons to mount undercover operations and that the actions of the police amounted to entrapment. They further argued that the domestic courts had not properly examined their allegations that the offences they were charged with had been instigated by the police.

24. The Court reiterates that the absence in the Russian legal system of clear and foreseeable procedure for authorising test purchases remains a structural problem which exposes the applicants to arbitrary action by the police and prevents the domestic courts from conducting an effective judicial review of their entrapment pleas (see Lagutin and Others, § 134, and Veselov and Others, § 126, both cited above). The present case is identical to other Russian cases on entrapment in which the Court consistently found violation on account of the deficient existing procedure for authorisation and administration of test purchases of drugs (see Lagutin and Others, Veselov and Others, Vanyan, and Khudobin, all cited above).

25. Therefore, the Court finds no reason to depart from its earlier findings on the matter and holds that the criminal proceedings against all five applicants were incompatible with a notion of a fair trial. Having regard to its well-established law on the subject, the Court considers that there has been a violation of Article 6 of the Convention with regard to each of the five applicants.

III. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE CONVENTION

26. Mr Nikitin (application no. 41167/06) also complained that he had not been able to examine a witness against him. He relied on Article 6 § 3 (d) of the Convention.

27. The Court has previously held that the right to examine or have examined witnesses whose testimonies may be relevant for the evaluation of an entrapment plea is one of the guarantees against the abuse of powers in the undercover operations (see Lagutin and Others, § 101, and Bannikova, § 65, both cited above). It therefore considers that this complaint is linked to the one examined above and concerns the proceedings which the Court has found to have been unfair. It accordingly declares the complaint admissible.

28. However, having regard to the finding relating to Article 6 § 1 (see paragraphs 24 and 25 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation under Article 6 § 3 (d).

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

29. Lastly, the applicants raised additional complaints with reference to various Articles of the Convention and its Protocols. The Court has examined these complaints as submitted by the applicants. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

30. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

31. The applicants claimed the following amounts in respect of non-pecuniary damage:

- Mr Yeremtsov - 80,000 euros (EUR);

- Mr Antonov - EUR 50,000;

- Mr Nikitin - EUR 100,000;

- Mr Mordvinov - EUR 67,000;

- Mr Kuznetsov - EUR 500,000.

32. The Government contested those claims as excessive. They considered that the finding of a violation, if any, would constitute sufficient just satisfaction for the applicants.

33. The Court considers that in the present case an award of just satisfaction must take account of the fact that the applicants did not have a fair trial because they were convicted of drug offences arguably instigated by the police in violation of Article 6 of the Convention. They undeniably sustained non-pecuniary damage as a result of the violation of their rights. However, the sums claimed appear to be excessive. Making its assessment on an equitable basis, the Court awards EUR 3,000 to each of the applicants in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

34. Mr Mordvinov also claimed 58,000 Russian roubles (RUB, approximately EUR 1,200) for legal representation costs and expenses incurred in the domestic proceedings. He submitted copies of invoices for the amount of RUB 58,100 with a breakdown of the costs incurred.

35. The Government submitted that the applicant’s claim for costs and expenses was unsubstantiated because he provided copies of invoices only for RUB 14,000 and RUB 18,000.

36. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award to Mr Mordvinov the sum of EUR 1,200 covering costs and expenses in the domestic proceedings.

C. Default interest

37. 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 complaints concerning the applicants’ conviction for criminal offences that were incited by the police and Mr Nikitin’s complaint regarding examination of witness admissible and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds that there is no need to examine Mr Nikitin’s complaint under Article 6 § 3 (d) of the Convention;

5. Holds

(a) that the respondent State is to pay the applicants within three months the following sums to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros) to each of the applicants in respect of non-pecuniary damage, plus any tax that may be chargeable on these amounts;

(ii) EUR 1,200 (one thousand two hundred euros) to Mr Mordvinov in respect of costs and expenses, plus any tax that may be chargeable on this amount;

(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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 27 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Prebensen Khanlar Hajiyev
Acting Deputy Registrar President

Appendix

No.	Application No.	Dates of introduction and communication	Applicant’s name Date of birth Place of residence	Represented by	Final judgment
1.	20696/06	16/05/2006 16/12/2009	Ilya Vitalyevich YEREMTSOV 23/10/1972 Moscow	Maksim Tadeushevich RACHKOVSKIY	Moscow City Court (supervisory review), 18/11/2006.
2.	22504/06	08/05/2006 09/11/2012	Dmitriy Mikhailovich ANTONOV 28/11/1979 Moscow	Mikhail Anatolyevich FOMIN	Moscow City Court (supervisory review), 14/09/2006.
3.	41167/06	20/07/2006 06/12/2010	Stanislav Yevgenyevich NIKITIN 28/11/1980 Ulyanovsk		Ulyanovsk Regional Court (supervisory review), 25/01/2007.
4.	6193/07	14/12/2006 09/11/2012	Igor Vadimovich MORDVINOV 25/02/1974 Ulyanovsk	Valeriy Vladimirovich MAKAROV	Ulyanovsk Regional Court (reopened proceedings), 28/01/2013.
5.	18589/07	20/02/2007 18/12/2012	Vasiliy Valentinovich KUZNETSOV 16/09/1971 Engels-2		Saratov Regional Court (reopened proceedings), 28/03/2013.

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