In the case of Veselov and Others v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 11 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in three applications
(nos. 23200/10, 24009/07 and 556/10) 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 three Russian nationals,
Mr Viktor Sergeyevich Veselov, Mr Maksim Borisovich Zolotukhin and Mr Igor
Vyacheslavovich Druzhinin (“the applicants”), on 8 April 2010, 3 May 2007
and 12 November 2009 respectively.
The applicants
were represented respectively by Ms O.O. Mikhaylova, a lawyer
practising in Moscow, Mr G.B. Gabdrakhmanov, a lawyer practising in
Yekaterinburg, and Mr V.G. Tuchin, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of
the Russian Federation at the European Court of Human Rights.
The applicants each alleged that they had been
convicted of drug offences incited by the police in violation of Article 6 of
the Convention.
On 25 November 2010 the applications were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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). These operations led to their criminal conviction
for drug dealing.
The facts of each individual criminal case, as
submitted by the parties, are summarised below. The applicants disagreed with
the Government on the underlying causes and the circumstances leading to the
test purchases, and where this is so both versions are given. As regards the factual
details of the covert operations, they are not in dispute. In particular, it is
common ground that the applicants knowingly procured drugs in the course of the
test purchases.
A. The application of Mr
Veselov
The applicant was born in 1989 and lives in Moscow. At the time of his arrest he was a third-year student at a management college. He
is currently serving a prison sentence in a correctional colony.
According to the Government, on 19 May 2009 a Mr X
voluntarily went to the police and reported that two persons, “Viktor” (the
applicant) and “Ruslan”, were selling hashish at 600 Russian roubles (RUB) per
gram.
According to the applicant, X was a drug addict,
with a previous criminal conviction for illegal possession of drugs, and he was
a police informant who had previously taken part in test purchases of drugs. To
support these allegations the applicant provided a copy of the judgment against
X and copies of four judgments in unrelated criminal proceedings against four
different persons where X featured as the buyer in test purchases of cannabis,
heroin and hashish from the accused.
It is common ground, supported by the official
records, that the police ordered a test purchase and proceeded with it
immediately after having received the information from X. The order indicated
the applicant’s name and stated that he was suspected of selling hashish at RUB
600 per gram. X phoned “Ruslan” and told him that he wished to buy hashish. The
police officers were present when X was speaking to “Ruslan”, but the
conversations were not recorded. X was given RUB 3,000 that had been
photocopied. He met “Ruslan” later on the same night and together they met the
applicant who took RUB 1,200 from them and went away to purchase the drugs. The
applicant was later arrested and was found in possession of banknotes that
matched the photocopied ones. Throughout the test purchase X had his mobile
phone turned on with the police officer’s number dialled, which enabled the
police to overhear their conversations. These communications were not recorded.
Neither “Ruslan” nor the applicant’s dealer were arrested or prosecuted,
allegedly on the grounds that their identities could not be established.
X testified at trial that he had met the
applicant and “Ruslan” at a local supermarket about two weeks before the test
purchase. In the course of their conversation the applicant had told him that
he could get some hashish for him. “Ruslan” had given him his phone number. X had
then volunteered that information to the police and agreed to take part in the
test purchase. He testified that he had not previously bought drugs from the
applicant. When the defence counsel cross-examined X the court disallowed
questions about his criminal record and whether he was a drug user. It also
dismissed the motion to have the judgments proving that X had previously acted
as a buyer in test purchases of drugs accepted as evidence.
The policemen who had initiated and carried out
the test purchase testified at the trial that prior to X’s information they had
not known the applicant as drug dealer. They reiterated the details of the test
purchase.
At the trial the applicant pleaded guilty of
assisting “Ruslan” in buying drugs, but claimed that it had been the result of police
incitement. He claimed that he and “Ruslan” were occasional smokers of hashish
but that he was not selling or otherwise supplying it to anyone. The test
purchase was the first time he had agreed to help “Ruslan”, or anyone, in
obtaining drugs, and he had only done so because of his insistent prompting.
The person named “Ruslan” was not called to be
cross-examined at the trial, allegedly because the investigating authorities
had failed to establish his identity.
On 15 September 2009 the Nikulinskiy District
Court of Moscow found the applicant guilty of attempted illegal sale of
narcotic drugs and sentenced him to four and a half years’ imprisonment. The
court did not make an express assessment of the applicant’s plea of entrapment.
The applicant appealed. He reiterated his plea
of provocation, claiming, inter alia, that X had been a police informant
and challenging the refusal of the first-instance court to admit the
relevant documents as evidence. He also pointed out that the police had no
other information suggesting that he had previously sold drugs. He also
complained that the authorities had not made any attempts to find and question “Ruslan”,
who had played a key role in the test purchase and could have cast light on the
extent of the provocation.
On 11 November 2009 the Moscow City Court upheld
the first-instance judgment. It reiterated the finding that the applicant
had attempted to sell the narcotic drug during the test purchase and implicitly
dismissed the plea of entrapment without answering the applicant’s arguments.
B. The application of Mr Zolotukhin
The applicant was born in 1982 and lives in Yekaterinburg.
He is currently serving a prison sentence in Nijniy Tagil.
According to the Government, on 13 June 2006 Ms
Y voluntarily went to the police and reported that she was a heroin addict and
that she wished to inform on her drug dealer. She said that she had been buying
heroin from the applicant for a long time, but did not specify for how long.
The police asked her to participate in a test purchase of drugs from the
applicant, and she agreed to do so.
According to the applicant, he knew Y from
primary school and through his girlfriend. He knew that she was a drug user;
she would occasionally offer to sell him second-hand mobile phones of unclear
provenance. A few months before the test purchase she had sold him a DVD player
which had later been seized by the police as a stolen item. Because of that, Y
owed the applicant RUB 6,000 which she was unable to repay. On 13 June 2006 she
contacted him with an offer to redeem the debt, but told him that she would
only do so if he got her some heroin, of which she was badly in need. The
applicant contacted an acquaintance, a drug dealer, and arranged for the quantity
Y had requested. He claimed that it was the first time he had agreed to
purchase drugs for Y or for anyone.
It is common ground between the parties that
prior to Y’s submissions the police had not been in possession of any
information suggesting the applicant’s possible involvement in drug dealing.
On the same day the police ordered a test
purchase. The order indicated the applicant’s name and address and stated that
he was suspected of selling heroin at RUB 500 per gram. Y was given RUB 3,000
in banknotes that had been photocopied. She phoned the applicant and arranged to
purchase five grams of heroin. The content of the phone call, which was made
from police premises and in the presence of police officers, was not recorded.
The applicant met Y at the agreed place in town and she passed him the money.
The police arrested the applicant on the spot. He was in possession of RUB
3,000 in banknotes that matched the ones the police had photocopied. Y handed
in a packet of heroin allegedly purchased from the applicant. The applicant
claimed that he had not supplied the drugs handed in by Y because he was
supposed to give them to her later.
After the arrest the applicant offered to inform
the police on the dealer from whom he had obtained the heroin for Y and to
conduct a test purchase from him, but the offer was not followed up.
The case was examined at first instance by the Ordzhonikidzevskiy
District Court of Yekaterinburg. At the trial the applicant pleaded partly
guilty but claimed that the crime he had committed was the result of police entrapment.
He pointed out, in particular, that there was no evidence of his prior
involvement in drug dealing. He maintained that Y had previously asked him to
buy heroin for her, knowing that he had an acquaintance who was a dealer, but
he had always refused. 13 June 2006 was the first time he had agreed to help
her, and this was only because she had promised to pay back her debt if he did.
He claimed that her participation in the test purchase was not “voluntary”, but
prompted by the police, who had manipulated her by playing on her drug
addiction.
Y testified at the trial that on 13 June 2006
she had voluntarily gone to the police to inform them about the applicant’s
involvement in drug trafficking. She also stated that she had previously bought
heroin from the applicant at least three times.
The police officer who carried out the test
purchase testified at the trial that on 13 June 2006 Y had voluntarily gone to
the police station and reported that she was a heroin addict and that she
wished to inform them that the applicant was her drug dealer. He also stated
that she had collaborated with him for six months prior to the test purchase,
and that she had taken part in unrelated test purchases of drugs from other
persons. He further stated that prior to 13 June 2006 the police had had no
information on the applicant and that the test purchase was ordered as soon as
Y had reported him. She had been asked to make a phone call to the applicant
immediately from the police station; when she did so she had only asked the
applicant to sell her heroin, without entering into any other subjects.
The court also cross-examined another policeman
who had taken part in the test purchase, and read out statements given by the attesting
witnesses in the investigation, in which they set out the details of the test
purchase. On 28 September 2006 it found the applicant guilty of attempted
illegal sale of narcotic drugs in particularly large quantities. It did not
expressly refer to the applicant’s plea of entrapment, having found the fact of
the sale sufficiently established and having noted the compliance of the test
purchase with the procedural requirements. It considered that the applicant’s
version of events, whereby he met Y because of the debt, had been refuted by
other evidence. The applicant was sentenced to ten years’ imprisonment in a
high-security correctional colony.
The applicant appealed, pleading police incitement
of the offence he was convicted of and alleging that the first-instance
court had incorrectly assessed the evidence.
On 6 December 2006 the Sverdlovskiy Regional
Court upheld the first-instance judgment. It did not address the plea of entrapment,
but limited itself to finding the applicant’s conviction lawful and
well-founded.
C. The application of Mr Druzhinin
The applicant was born in 1977 and lives in Moscow. Trained in the past as a policeman, in 2002 he was convicted of a murder and, after
his release, worked as a welder. He is currently serving a prison sentence in a
correctional colony in the Republic of Mordovia following his conviction of the
drug offence described below.
According to the Government, on 4 September 2008
Ms Z voluntarily presented herself at the local office of the Federal Service
for Drug Control (ФКСН, the
police) and reported that she was a heroin addict and that she wished to inform
the authorities that the applicant was a drug dealer. The police asked her to
participate in a test purchase of drugs from the applicant, and she agreed to
do so.
It is common ground between the parties that
prior to Z’s submissions the police had not been in possession of any
information suggesting the applicant’s possible involvement in drug dealing.
However, the Government also claimed that this information was corroborated by
a report of an officer of the Federal Service for Drug Control drawn on the
same day, 4 September 2008.
According to the applicant, he had known Z for
about ten years through his personal contacts; he was also acquainted with a certain
Ms P, also through personal contacts. From his police training with the Federal
Service for Drug Control he knew that the two women were drug addicts, with
criminal records related to drug dealing, and that they were police informants.
On 4 September 2008 Z called him and asked for the phone number of P because
she wanted to buy drugs from her; she said that she was suffering severe
withdrawal symptoms and was on the verge of committing suicide. Later the same
day she called him again and asked him to accompany her to the meeting with P
because she feared that P would not sell to her if she was on her own. Out of
compassion he agreed to go along. When the three of them met, P sold Z two grams
of methamphetamine, a home-made narcotic drug produced with ephedrine and referred
to throughout the proceedings by its slang name “speed” («винт»). The applicant was arrested
on the spot. He alleged that he did not have either money or drugs on him
during the arrest, claiming that the money was planted on him during the
search. He acknowledged, however, that he assisted Z in buying the “speed” but maintained
that it was the first time he had done so for Z or for anyone, having succumbed
to her persistent begging.
The official records presented the following
account of the test purchase. Having received the information from Z, the
police ordered a test purchase and proceeded with it immediately. The order
indicated the applicant’s name and stated that he was suspected of selling “speed”
for RUB 500 per gram. Z was given RUB 1,000 in banknotes that had been
photocopied. She phoned the applicant from police premises and asked him to get
the drugs for her. He called her back later and they arranged to purchase two
grams of “speed”. The police officers were listening when Z spoke to the
applicant on the phone, but the conversations were not recorded. The applicant
met Z later on the same night and together they met another person, P. When Z
gave a signal to the police they arrested the applicant and took him to the
police station. At the station the police examined a wallet allegedly found on
him which contained RUB 1,000 in banknotes that matched the photocopied ones. Z
handed in a syringe with “speed” in it, allegedly purchased from the applicant.
P was also arrested, but she was released shortly afterwards and was not
prosecuted.
At the trial the applicant pleaded guilty of helping
Z to buy drugs, but claimed that he had been induced by the police to do so and
requested that the evidence relating to the test purchase be excluded.
Z testified that she had volunteered information
about the applicant to the police because she thought it would make it easier
for her to overcome her addiction. She stated that before the test purchase she
had never bought drugs from the applicant; however, since they used to buy and
consume them together she told the police that she would be able to convince
him to obtain the drugs for her. She further stated that she did not know if
the applicant had previously sold drugs to anyone else, and she was almost
certain he did not produce them himself. She also admitted that she used to buy
drugs from another source. Finally, concerning the circumstances of the test
purchase, she testified that she gave the money to the applicant and took the
syringe from him and that she did not see P handle either the money or the
syringe.
The applicant requested that P be called and
cross-examined, but the court noted that she had been summoned and had absconded,
and that her whereabouts were unknown. The court considered this to constitute
exceptional circumstances allowing it to take her written depositions into
account. Despite the applicant’s objections, it read out her pre-trial
statement saying that she had delivered the drugs to the agreed place at the
applicant’s request, but that the sale had been arranged by him.
Four police officers were cross-examined about
the covert operation. They reiterated the details of the test purchase. One of
them testified, when asked, that Z was not remunerated for her collaboration
with the police.
On 17 February 2009 the Zyuzinskiy District
Court of Moscow found the applicant guilty of attempted illegal sale of
narcotic drugs and sentenced him to four and a half years’ imprisonment. The
sentence was increased to five years for breach of parole relating to his
previous conviction.
The applicant appealed, pleading police incitement
of the offence he was convicted of and complaining that the first-instance
court had incorrectly assessed the evidence.
On 13 May 2009 the Moscow City Court examined
the appeal. It dismissed the plea of entrapment, stating that the test purchase
was based on the information given by Z to the police, notably that she “had
previously bought drugs from the applicant on multiple occasions”, and concluded
that the test purchase was therefore lawful. It upheld the first-instance
judgment as well-founded.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal liability for drug
trafficking
Article 228.1 of the Criminal Code (as in force
at the material time) provided that the unlawful sale of narcotic drugs or psychotropic
substances carried a sentence of four to eight years’ imprisonment; the same
offence involving a large quantity of drugs or committed by a group of persons
acting in conspiracy carried a sentence of up to twelve years’ imprisonment;
the same offence involving a particularly large quantity of drugs carried a
sentence of up to twenty years’ imprisonment (Article 228.1 § 3 (d)).
On 15 June 2006 the Plenary Supreme Court of the
Russian Federation adopted guidelines (Ruling No. 14) on jurisprudence in
criminal cases involving narcotic drugs or psychotropic, or strong, or toxic
substances. The Plenary ruled, in particular, that any sale of such substances,
if carried out in connection with a test purchase under the Operational-Search
Activities Act, should carry charges of attempted sale (Article 30 § 3 in
conjunction with Article 228.1 of the Criminal Code). It also set out the
following conditions on which the results of the test purchase could be
admitted as evidence in criminal proceedings: (i) they must have been obtained
in accordance with the law; (ii) they must demonstrate that the defendant’s
intention to engage in trafficking of illegal substances had developed
independently of the undercover agents’ acts; and (iii) they must demonstrate
that the defendant had carried out all the preparatory steps necessary for the
commission of the offence.
B. Investigative techniques
The
Operational-Search Activities Act of 12 August 1995 (no. 144FZ) provided
as follows at the material time:
Section 1: Operational-search activities
“An operational-search activity is a form of overt or covert
activity carried out by operational divisions of State agencies authorised by
this Act (hereinafter ‘agencies conducting operational-search activities’)
within the scope of their powers, with a view to protecting the life, health,
rights and freedoms of individuals and citizens, or property, and protecting
the public and the State against criminal offences.”
Section 2: Aims of operational-search activities
“The aims of operational-search activities are:
- to detect, prevent, intercept and investigate criminal
offences as well as searching for and identifying those responsible for
planning or committing them;
...”
Section 5: Protection of human rights and citizens’
freedoms during operationalsearch activities
“...
A person who considers that an agency conducting
operational-search activities has acted in breach of his or her rights and
freedoms may challenge the acts of that agency before a higher-ranking agency
conducting operational-search activities, a prosecutor’s office or a court.
...”
Section 6: Operational-search measures
“In carrying out investigations the following measures may be
taken:
...
4. test purchase;
...
9. supervision of postal, telegraphic and other
communications;
10. telephone interception;
11. collection of data from technical channels of
communication;
12. operational infiltration;
13. controlled supply;
14. operational experiments.
...
Operational-search activities involving supervision of postal,
telegraphic and other communications, telephone interception through
[telecommunications companies], and the collection of data from technical
channels of communication are to be carried out by technical means by the
Federal Security Service, the agencies of the Interior Ministry and the
regulatory agencies for drugs and psychotropic substances in accordance with
decisions and agreements signed between the agencies involved.
...”
Section 7: Grounds for the performance of
operational-search activities
“[Operational-search activities may be performed on the
following grounds;] ...
1. pending criminal proceedings;
2. information obtained by the agencies conducting
operational-search activities which:
(1) indicates that an offence is being planned or
has already been committed, or points to persons who are planning or committing
or have committed an offence, if there is insufficient evidence for a decision
to institute criminal proceedings;
...”
Section 8: Conditions governing the performance of
operational-search activities
“Operational-search activities involving interference with the
constitutional right to privacy of postal, telegraphic and other communications
transmitted by means of wire or mail services, or with the privacy of the home,
may be conducted, subject to a judicial decision, following the receipt of
information concerning:
1. the appearance that an offence has been committed
or is ongoing, or a conspiracy to commit an offence whose investigation is
mandatory;
2. persons who are conspiring to commit, or are
committing or have committed an offence whose investigation is mandatory;
...
Test purchases ..., operational experiments, or infiltration by
agents of the agencies conducting operational-search activities or individuals
assisting them, shall be carried out pursuant to an order issued by the head of
the agency conducting operational-search activities.
Operational experiments may be conducted only for the
detection, prevention, interruption and investigation of a serious crime, or
for the identification of persons who are planning or committing or have
committed a serious crime.
...”
Section 9: Grounds and procedure for judicial authorisation
of operational-search activities involving interference with the constitutional
rights of individuals
“The examination of requests for the taking of measures
involving interference with the constitutional right to privacy of
correspondence and telephone, postal, telegraphic and other communications
transmitted by means of wire or mail services, or with the right to privacy of
the home, shall fall within the competence of a court at the place where the
requested measure is to be carried out or at the place where the requesting
body is located. The request must be examined immediately by a single judge;
the examination of the request may not be refused.
...
The judge examining the request shall decide whether to
authorise measures involving interference with the above-mentioned
constitutional right, or to refuse authorisation, indicating reasons.
...”
Section 10: Information and documentation in support of
operational-search activities
“To pursue their aims as defined by this Act, agencies
conducting operational-search activities may create and use databases and open
operational registration files.
Operational registration files may be opened on the grounds set
out in points 1 to 6 of section 7(1) of this Act ...”
Section 11: Use of information obtained through
operational-search activities
“Information gathered as a result of operational-search
activities may be used for the preparation and conduct of the investigation and
court proceedings ... and used as evidence in criminal proceedings in
accordance with legal provisions regulating the collection, evaluation and
assessment of evidence. ...”
On 24 July 2007 section 5 of the Act was amended
to prohibit agencies conducting operational-search activities from directly or
indirectly inducing or inciting the commission of offences.
Article 125 of the Code of Criminal Procedure of
the Russian Federation, in force from 1 July 2002, provided at the material
time that orders of a preliminary interview officer, investigator or prosecutor
that were capable of encroaching on the constitutional rights and freedoms of
participants in criminal proceedings or obstructing their access to justice
could be challenged before a court whose jurisdiction covered the place of the
investigation. Subsequent changes in the Code added the head of the
investigating authority to the list of officials whose acts could be
challenged.
On 10 February 2009 the Plenary Supreme Court of
the Russian Federation adopted guidelines (Ruling No. 1) on the practice of
judicial examination of complaints under Article 125 of the Code of Criminal
Procedure of the Russian Federation. The Plenary ruled, inter alia, that
decisions of officials of agencies conducting operational-search activities
must also be subject to judicial review under the provisions of Article 125 if
the officials were acting pursuant to an order by an investigator or the head
of the investigating or preliminary inquiry authority.
C. Evidence in criminal proceedings
The Code of Criminal Procedure provides, in so
far as relevant:
Article 75: Inadmissible evidence
“1. Evidence obtained in breach of this Code shall
be inadmissible. Inadmissible evidence shall have no legal force and cannot be
relied on as grounds for criminal charges or for proving any of the
[circumstances for which evidence is required in criminal proceedings].
...”
Article 235: Request to exclude evidence
“...
5. If a court decides to exclude evidence, that
evidence shall have no legal force and cannot be relied on in a judgment or
other judicial decision, or be examined or used during the trial.
Article 392 of the CCP
contains a list of situations which may justify the reopening of a finalised
case on account of newly discovered circumstances. A judgment of the European
Court of Human Rights finding a violation of the European Convention on Human
Rights in a case in respect of which an applicant lodged a complaint with the
Court is considered to be a new circumstance warranting a reopening (Article
392 § 4 (4)).
III. COMPARATIVE LAW
The Court conducted a
comparative study of the legislation of twenty-two member States of the Council
of Europe (Austria, Belgium, Bulgaria, Czech Republic, Croatia, Estonia,
Finland, France, Germany, Greece, Ireland, Italy, Liechtenstein, Lithuania, “the
former Yugoslav Republic of Macedonia”, Poland, Portugal, Romania, Slovenia,
Spain, Turkey and the United Kingdom) concerning the use of undercover agents
in test purchases and similar covert operations.
The comparative study showed that in all of these
countries it is possible for the police to carry out undercover operations, in
particular in drug-trafficking cases, according to the procedure set out in the
relevant laws and regulations. Only in Ireland is there no formal legislative
or regulatory basis for the use of undercover police. A number of countries
provide also for the involvement of private individuals and authorise resort to
undercover agents only when the collection of evidence by other means is too
complicated or impossible.
Research reveals that in most of the countries covered
there is exclusive or shared responsibility of the judicial bodies in the
authorisation procedure, although in some the decision lies with the public
prosecutor, the administrative authorities or high-level police officials.
A judicial authorisation is required in Bulgaria (court), Croatia (investigating judge), Estonia (investigating judge), Greece (indictments chamber), Liechtenstein, Poland (regional court with prior agreement of the
Prosecutor General), Slovenia (investigating judge), and Turkey (judge).
In Austria and Belgium the authority to sanction
undercover operations lies exclusively with the public prosecutor.
A number of countries provide for the involvement
of the prosecutor or the court, or both, depending, for example, on the type of
operation or, more commonly, the stage of the proceedings.
In the Czech Republic, “fictitious
transfers”, which include test purchases, require authorisation by the
public prosecutor, whereas the use of an undercover agent (in connection with particularly
serious offences) can be authorised only by a High Court judge. Under German
law, the use of undercover agents must be authorised by the public prosecutor,
and additionally by a court if the operation targets a particular person or
involves entry into private premises. In Romania also the authorisation is
given by the public prosecutor, but video and audio recording during the
operation requires prior authorisation by a judge.
In France, the authorisation is delivered
by the public prosecutor at the preliminary inquiry stage, and by the
investigating judge (juge d’instruction) during the pre-trial
investigation. Lithuanian law, in a similar vein, requires the authorisation of
a pre-trial judge during a pre-trial investigation, while at an earlier stage the
authorisation of the prosecutor suffices. In “the former Yugoslav Republic of
Macedonia” special investigative measures in the pre-investigation phase can
be ordered either by the public prosecutor or by an investigating judge, but
once an investigation has been opened the authorisation can be given only by
the latter.
In Portugal, covert operations within the framework
of the inquiry are subject to the prior authorisation of the competent member
of the Public Prosecution, with mandatory communication to the investigating
judge, and are deemed to be ratified if no order refusing permission is issued
within 72 hours. If the operation is carried out in the framework of crime
prevention, it falls within the competence of the investigation judge to give
the required authorisation at the proposal of the prosecution authorities.
Spanish law also provides for notification of
the investigating judge when authorisation for an undercover operation has been
given by the public prosecutor. Such authorisation can also be issued directly
by the judge.
In Italy there is no requirement for formal
authorisation from the prosecutor or a court, but the appropriate authority
must give prior notification of the start of the operation to the competent
prosecutor. In drug cases, before undertaking an
undercover operation, the Central Directorate for Drug Services or its regional
or provincial offices need to inform the prosecutor in charge of the investigations,
but they do not need their formal approval.
In a few countries, there is no involvement of a
court or a prosecutor in the authorisation procedure. In Finland, the decision on undercover activities is taken by the Head of the National Bureau of
Investigation or the Head of the Security Police, at the request of a regular
police department. The decision-making bodies are separate from the services
which carry out the operation.
In the United Kingdom undercover
operations are subject to administrative rather than judicial authorisation. In
the House of Lords decision in R v. Loosely [2001] Lord Mackay underlined that although
the technique in the United Kingdom for authorising and supervising such
practice was very different from the judicial supervision in continental
countries, the purpose was the same, namely to remove the risk of extortion,
corruption or abuse of power by policemen operating without proper supervision.
The public authorities entitled to authorise the use or conduct
of a Covert Human Intelligence Source (CHIS) are laid out in law. Each public
authority has its own separate authorising officer.
Authorising officers should not be responsible for authorising
their own activities, that is, those in which they themselves are to act as the
CHIS or as the handler of the CHIS. Furthermore, authorising officers should,
where possible, be independent of the investigation. However, it is recognised
that this is not always possible, especially in the case of small
organisations, or where it is necessary to act urgently or for security
reasons. Where an authorising officer authorises his own activity the central
record of authorisations should highlight this and the attention of a
Commissioner or Inspector should be drawn to it during his next inspection.
In Ireland similarly there is no judicial
authorisation procedure. The police or other enforcement agencies both take and
carry out all operational decisions concerning undercover operations.
IV. RELEVANT INTERNATIONAL LAW
A. The Council of Europe’s instruments
The Council of Europe’s instruments on the use
of special investigative techniques are outlined in Ramanauskas
v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR
2008-...).
B. Resolutions of the Committee of Ministers
65. On 26 February 2001 the Committee of
Ministers of the Council of Europe concluded the examination of the application
no. 25829/94 in the case of Teixeira de Castro v. Portugal (9 June
1998, Reports of Judgments and Decisions 1998-IV) by adopting Resolution
CM/ResDH(2001)12, which described the measures taken by the Government of
Portugal to prevent future violations of Article 6 § 1 on account of the use by
the police of undercover agents:
“... in order to ensure that the use of undercover agents does
not unduly interfere with the right to fair trial guaranteed by the European
Convention on Human Rights, Article 59 of Legislative Decree No. 15/93 on the
prevention of drug-trafficking has been amended by Act No. 45/1996 of 3
September 1996. According to the added paragraph 3 to Article 59, the use
of such persons is subject to a court’s approval, which has to be given within
5 days and for a specific period.
The Government is of the opinion that, in view of the
supra-legal status of the Convention, as interpreted by the European Court of
Human Rights, in Portuguese law (Constitutional Court judgments Nos. 345/99 of
15 June 1999 and 533/99 of 12 October 1999), the Portuguese courts will
exercise this supervision and adapt their interpretation of the Code of
Criminal Procedure (in particular of Article 126) in such a way as to avoid new
violations similar to that found in the Teixeira de Castro case.
In order to facilitate this adaptation, the judgment of the
European Court of Human Rights has been published in the Revista Portuguesa de
Ciência Criminal (RPCC 10/2000) and also disseminated to the authorities
concerned, including the police.”
On 10 March 2011
the Committee of Ministers concluded the execution of the judgment in
the case of Pyrgiotakis v. Greece (no. 15100/06, 21 February
2008), having adopted Resolution ResDH(2011)11 which
read in so far as relevant:
“The Court’s findings have been
endorsed in national case-law: it is held that, in conformity with
Article 6 of the Convention, the conviction of an accused should not arise
solely from the conduct of a police officer involved in the case (acting as
agent provocateur), otherwise the requirements of a fair trial are not met
(Court of Cassation 193/2009). Furthermore, this conviction should be based on
additional, strong evidence, and not only on the testimony of the police
officers involved. (Court of Cassation 100/2007, Corfu Court of Appeal
29/2007).”
67. On
2 December 2011 the Committee of Ministers concluded the execution of the
judgments in the cases of in Ramanauskas, cited above, and Malininas
v. Lithuania (no. 10071/04, 1 July 2008), having adopted Resolution
CM/ResDH(2011)231, which described the measures taken by the Government of
Lithuania to prevent future violations of Article 6 § 1 on account of the use
by the police of undercover agents:
“In order to prevent similar
violations, the Supreme Court set out, in its decision of 16 December
2008, the general principles with regard to cases where the criminal conduct
simulation model is employed.
First, the Supreme Court stressed that
the criminal conduct simulation model as an investigative technique may not be
employed to incite the commission of an offence but may be applied only if
credible and objective information had already been obtained to the effect that
the criminal activity had been initiated.
Secondly, state officials may not act
as private persons to incite third parties to commit an offence, while the acts
of private persons acting to incite third parties to commit an offence under
the control and instructions of state officials shall constitute such
incitement.
Thirdly, it may be inferred that there
is an act of incitement even if state officials do not act in a very intensive
and pressing manner, including in situations when contact with third parties is
made indirectly through mediators.
Fourthly, the burden of proof in
judicial proceedings lies with the state authorities, which have an obligation
to refute any argument raised by a defendant in criminal proceedings in respect
of the incitement by state agents to commit an offence.
Fifthly, once the act of incitement is
established, no evidence obtained through incitement shall be admissible. The
confession of an offence as a result of incitement does not eradicate either
incitement or its effects.
Sixthly, it is preferred that
undercover techniques are supervised by a court although supervision by a
prosecutor does not in itself violate the Convention.
This decision of the Supreme Court is
binding upon all domestic courts. Thus, it provides a clear and foreseeable
procedure in similar cases.”
THE LAW
I. JOINDER OF APPLICATIONS
Given that the applications at hand concern
similar complaints and raise identical issues under the Convention, the Court
decides to join them pursuant to Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicants complained that they had been
unfairly convicted of drug offences incited by the police and that their plea
of entrapment had not been properly examined in the domestic proceedings, in
violation of Article 6 of the Convention. These complaints fall to be examined
under Article 6 § 1 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 ...”
The Government contested that argument. They
claimed that the applicants had not exhausted domestic remedies because they
had not challenged the alleged entrapment before the prosecutor’s office or the
courts.
The applicants disagreed, pointing out that they
made a plea of entrapment in the first-instance hearing and before the
court of appeal. They referred to extracts from the court records and copies of
their points of appeal which contained the relevant arguments.
A. Admissibility
Having examined the documents referred to by the
applicants, the Court finds that the court records and the points of appeal
contain sufficiently clear and specific allegations that the offences at issue were
the result of police incitement. Moreover, it is clear from these documents as
well as from the respective judgments that these complaints were understood by
the domestic courts as such, but were dismissed. Consequently, the Court
concludes that the applicants’ complaints were brought to the attention of the
domestic courts competent to deal with them.
In so far as the Government may be understood as
suggesting that, before or in addition to having raised the issue of incitement
in court, the applicants were required to file the same complaints with the
prosecutor’s office, the Court considers that this was not necessary in order
to comply with the rule of exhaustion of domestic remedies. It reiterates that
an applicant who has exhausted a remedy that is apparently
effective and sufficient cannot be required also to have tried others that were
available but probably no more likely to be successful (see Aquilina
v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III). When a remedy has been pursued, use
of another remedy which has essentially the same objective is not required (see Micallef
v. Malta [GC], no. 17056/06, § 58, 15 October 2009). In the
circumstances of the present case, the Court considers that the applicants have
complied with the exhaustion requirement and that it has not been shown that a
complaint to the prosecutor would have offered better prospects of success.
Accordingly, it dismisses the Government’s
objection as to non-exhaustion of domestic remedies
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
The Government maintained that the test
purchases conducted in all three cases were lawful and involved no entrapment by
the police. They contended that in each case the police ordered the test
purchases based on information from independent sources, namely the private individuals
X, Y and Z, who had volunteered to expose the applicants’ criminal
activity. They considered that on this basis the present case should be
distinguished from the cases of Vanyan v. Russia (no. 53203/99, 15
December 2005) and Ramanauskas (cited above).
In respect of Mr Druzhinin, the Government also
contended that in addition to the above information from the private individual
concerned, there had also been a report by an officer of the Federal Service
for Drug Control referring to previous information that the applicant was
selling drugs.
In any event, they claimed that one source of
information was sufficient under domestic law for the conduct of a test
purchase.
They further alleged that neither the police nor
the buyers acting in the covert operations had put any pressure on the
applicants to sell drugs during the test purchases.
The Government also stated that the formal
requirements for a test purchase had been complied with in each case. They
submitted that no judicial authorisation was required because the covert
operations in question did not encroach on the applicants’ constitutional right
to privacy of their correspondence, telephone or other communications or their homes.
It was therefore sufficient that the test purchases were ordered by a senior police
officer. They further stated that the use of the results of the test purchase
as evidence was lawful, subject to the regular rules of admissibility of
evidence; it had been open to the applicants to challenge it before the court, inter
alia on the grounds of entrapment.
Finally, the Government stated that the
applicants had had their plea of entrapment examined by the domestic courts.
All the materials relating to the test purchase had been open to review by the
parties to the proceedings and all the relevant witnesses had been cross-examined.
The applicants’ conviction for drug dealing was therefore fair and lawful.
(b) The applicants
The applicants claimed that the test purchases
conducted in their cases did not pursue the purpose of investigating criminal
offences because the police had had no good reason to suspect them of wishing
to sell drugs. They pointed out that the authorities had not been in possession
of any information suggesting their involvement in drug dealing or indicating any
predisposition to commit drug offences.
For their part, the applicants maintained that
before the test purchases they had never procured drugs and would not have done
so had they not been lured by the police and their informants into doing so.
Moreover, in the cases of Mr Veselov and Mr Druzhinin the persons who had
informed on the applicants had later testified that they had not bought drugs
from them before they exposed them as drug dealers, and were not aware if they
had sold drugs to anyone else. Referring to the Government’s argument
specifically concerning his case, Mr Druzhinin argued that the police report
they referred to did not contain any previous information that could have led
them to suspect him of being a drug dealer.
In any event, all three applicants contested the
Government’s allegations that the police sources were private individuals unconnected
with operational-search activities. They maintained that X, Y and Z were
long-term police informants who would regularly act as buyers in test purchases
of drugs. Mr Veselov supported his allegation with copies of judgments given in
unrelated criminal cases where the same source had acted as a buyer in other
test purchases. Mr Zolotukhin also claimed that the source in his case had
collaborated with the police in other cases for at least six months before informing
on him, and this had been confirmed in the first-instance hearing. Mr Druzhinin
likewise contended that the source in his case was no ordinary private individual,
but a police informant, a fact allegedly known to him from his previous
training with the Federal Service for Drug Control.
The applicants further claimed that the
investigating authorities had not acted in an essentially passive manner. They had
taken no steps to verify the collaborators’ information, but had limited the
investigation to only one measure: the test purchase. They claimed that the
authorities had taken the initiative to contact them and persuade them, through
the informants, to find drugs. They alleged that the buyers had pestered them
incessantly, and they had succumbed to their insistence on the understanding
that they would only do it once, exceptionally.
Furthermore, they claimed that the lack of
formal requirements for the authorisation of test purchases and the fact that
they were poorly documented had made it impossible for them to demonstrate, or
for the domestic courts to review, the reasons for the test purchase, or the
manner in which the police and their informants had acted.
Finally, the applicants pointed out that the
courts had not properly examined their allegations that the offences they were
charged with had been instigated by the police. In sum, they considered that
the whole criminal proceedings in their cases were based on entrapment and
concerned offences that would never have been committed were it not for the
police incitement.
2. The Court’s assessment
(a) General principles
General principles relating to the guarantees of
a fair trial in the context of undercover investigative techniques used to
combat drug trafficking and corruption are set out in the Court’s extensive
case-law summarised in the case of Bannikova v. Russia (no. 18757/06, §§ 33-65, 4 November 2010).
Those directly applicable in the instant cases are reiterated below.
While the Court accepts the use of undercover
agents as a legitimate investigative technique for combating serious crimes, it
requires that adequate safeguards against abuse be provided for, as the public
interest cannot justify the use of evidence obtained as a result of police
incitement (see Teixeira
de Castro, cited above, §§ 34-36). More particularly, the
Convention does not preclude reliance, at the preliminary investigation stage
and where the nature of the offence may warrant it, on sources such as
anonymous informants. However, the subsequent use of such sources by the trial
court to found a conviction is a different matter and is acceptable only if
adequate and sufficient safeguards against abuse are in place, in particular a
clear and foreseeable procedure for authorising, implementing and supervising
the investigative measures in question (see Khudobin
v. Russia, no. 59696/00, § 135, 26 October 2006, and Ramanauskas,
cited above, § 53).
In cases where the main evidence
originates from a covert operation, such as a test purchase of drugs, the authorities
must be able to demonstrate that they had good reasons for mounting the covert
operation. In particular, they should be in possession of concrete and
objective evidence showing that initial steps have been taken to commit the
acts constituting the offence for which the applicant is subsequently
prosecuted (see Sequeira v. Portugal (dec.), no. 73557/01,
ECHR 2003-VI; Eurofinacom v. France (dec.),
no. 58753/00, ECHR 2004-VII; Shannon
v. the United Kingdom (dec.), no. 67537/01, ECHR 2004-IV; Ramanauskas,
cited above, §§ 63 and 64, and Malininas, cited above, § 36). The Court
has specified that any information relied on by the authorities must be verifiable
(see Vanyan, cited above, § 49, and Khudobin, cited above, §
134).
Where the authorities claim that they acted upon
information received from a private individual, the Court draws a distinction
between an individual complaint and information coming from the police
collaborator or informant (see Sequeira
and Shannon, both cited above; Milinienė v. Lithuania,
no. 74355/01, §§ 37-38, 24 June 2008; Malininas, cited above, § 37,
and Gorgievski v. “the former Yugoslav
Republic of Macedonia”, no. 18002/02, §§ 52 and 53, 16 July 2009). The latter would run a significant
risk of extending their role to that of agents
provocateurs, in possible breach of Article 6 § 1 of the Convention,
if they were to take part in a police-controlled operation. It is therefore
crucial in each case to establish if the criminal act was already under way at
the time when the source began collaboration with the police (see Sequeira and Eurofinacom, both cited above).
Furthermore, any covert operation must comply
with the requirement that the investigation be conducted in an essentially
passive manner. This rules out, in particular, any conduct that may be
interpreted as pressure being put on the applicant to commit the offence, such
as taking the initiative in contacting the applicant, renewing the offer
despite his initial refusal, insistent prompting, raising the price beyond
average or appealing to the applicant’s compassion by mentioning withdrawal
symptoms (see, among other cases, Ramanauskas, cited above, § 67; Vanyan,
cited above, §§ 11 and 49, and Malininas, cited above, § 37).
The Court has found that the line between
legitimate infiltration by an undercover agent and instigation of a crime was
more likely to be crossed if no clear and foreseeable procedure was set up by
the domestic law for authorising undercover operations; all the more so if
their proper supervision was also missing. In cases against Russia the Court
has found, in particular, that neither the Operational-Search Activities Act
nor other instruments provided for sufficient safeguards in relation to test
purchases, and stated the need for their judicial or other independent
authorisation and supervision (see Vanyan,
cited above, §§ 46 and 47; Khudobin, cited
above, § 135; and Bannikova, cited above, §§ 49-50).
Finally, the Court
has emphasised the role of domestic courts dealing with criminal cases where
the accused alleges that he was incited to commit an offence. Any arguable plea
of incitement places the courts under an obligation to examine it in a
manner compatible with the right to a fair hearing. The procedure to be
followed must be adversarial, thorough, comprehensive and conclusive on the
issue of entrapment, with the burden of proof on the prosecution to demonstrate
that there was no incitement (see Ramanauskas,
cited above, § 70). The scope of the judicial review must include the reasons
why the covert operation was mounted, the extent of the police’s involvement in
the offence and the nature of any incitement or pressure to which the applicant
was subjected (ibid, § 71). As regards Russia, in particular, the Court
has found that the domestic courts had capacity to examine such pleas, in
particular under the procedure for the exclusion of evidence (see Khudobin, cited above, §§ 133-135).
(b) Application of these principles to the present
case
Before proceeding to examine the individual
circumstances of the three applicants, the Court will outline the general
considerations that apply to all of them. It observes that in contesting the
fairness of the criminal proceedings the applicants alleged that the test
purchases in their cases had been ordered arbitrarily, in the absence of prior information
about any criminal activity on their part, and that the authorities had carried
out the investigation in a manner that was not “essentially passive”. They all
alleged that the police sources in their cases were police informants, not
independent individuals. They also complained of the lack of a regulatory
framework providing for safeguards in the conduct of covert operations, and
argued that the domestic courts had failed to properly examine their pleas of entrapment.
The central issue in this case is therefore the
manner in which the authorities conducted the test purchases. The Court
observes that although the background and the circumstances of the three covert
operations varied, they shared a number of common features. In particular, they
were ordered solely on the basis of an allegedly voluntary contribution of
information by a private source who subsequently acted in the test purchase as
a buyer. In each case, the source had an established identity and testified at
the trial. No other, undisclosed, information had played any role in the
domestic decision-making or judicial assessment. The circumstances of the
ensuing transactions concluded between the applicants and the undercover agents
were sufficiently established and largely undisputed between the parties.
Accordingly, the Court will be able to examine the applicants’ complaint of
incitement having access to the same material as the domestic authorities. In
view of the nature of the complaints and the underlying facts, the Court will
examine whether the applicants were subjected to police entrapment, which is
primarily the question under the substantive test of incitement (see Bannikova,
cited above, §§ 37-50), although the subsequent judicial review will also be
taken into account.
The Court will therefore proceed to assess the
authorities’ conduct in each of the three test purchases.
(i) Test purchase in the case of Mr Veselov
According to the domestic authorities this test
purchase was ordered after a volunteer reported the applicant’s criminal
activity. The Government presented it as though the matter was brought to the
attention of the police by an independent source, a private individual X. The
applicant contested that explanation and claimed that X had been working as an
informant for the police, and that he had previously participated in other test
purchases, at least four of which had resulted in criminal convictions.
The parties agreed, and it also appears from the
domestic decisions that the police had possessed no information about the
applicant before X reported him to them on 19 May 2009. Moreover, according to
X’s testimony, he had never bought drugs from the applicant, except during the
test purchase. The Government nevertheless considered that the information
supplied by X gave the police sufficient grounds for ordering a test purchase,
and did not question the reasonableness of organising one immediately.
The Court observes the documentary evidence
submitted by the applicant, which confirms X’s involvement in unrelated test
purchases carried out by the police, and finds that it convincingly
demonstrates X’s long-term collaboration with the investigating authorities.
It considers that X’s status as a police informant sets this case apart from
situations when the police are merely informed by a private individual - crucially,
not a police collaborator or informant - about a criminal act that has already
been initiated. Examples of such situations may be found in the cases of Shannon (cited above), where the police
received a complete file documenting a drug sale made
by the applicant, and Milinienė (cited above), where the authorities
received an individual complaint that the applicant had requested a bribe. In
both cases the police were acting under an obligation to verify criminal
complaints about offences that had already been under way. The Court has considered that in such cases the use
of the investigative techniques in question was not associated with the risk
that a criminal offence would be instigated by the police, provided that firm
procedural safeguards were in place.
. When
it comes to reports by police collaborators and informants, different
considerations apply. The Court has required that clear distinction be made
between their use as sources and their involvement in police-controlled
covert operations. It has consistently stressed that their role must remain strictly passive so as not to incite the
commission of an offence, which is hard to achieve if the test purchase is conducted
by an informer acting as a buyer (as in the case of Khudobin, cited above, § 134). A test
purchase performed by an undercover officer or informer must therefore call for
a particularly strong justification, subject to a stringent authorisation
procedure and a requirement that it should be documented in a way allowing for
a subsequent independent scrutiny of the actors’ conduct.
As regards the authorisation procedure, the Court notes that the Russian
domestic framework for authorising and supervising test purchases was found
deficient in the cases of Vanyan (cited
above, §§ 46 and 47) and Khudobin (cited
above, § 135), and observes that it has not evolved since. While entrapment was
expressly outlawed by the 2007 amendments (see paragraph 44 above), no
legislative or regulatory instruments give a definition or interpretation of
the term, or any practical guidance as to how to avoid it.
Like in the
aforementioned cases, the test purchase in respect of the applicant was ordered
by a simple administrative decision of the body which later carried out the
operation; the decision contained very little information as to the reasons for
and purposes of the planned test purchase, and the operation was not subjected
to judicial review or any other independent supervision. There was no need to justify the decision and virtually
no formalities to follow.
The Court observes
that similar investigative activities are subject to strict regulations in
other Member States. The majority of justice systems require authorisation of
test purchases and similar covert operations by a judge or a public prosecutor.
In the few countries where there is no involvement of a court or a prosecutor
in the authorisation procedure the decision-making bodies are still separate
from the services which carry out the operation. The police are generally
required to justify the need for such a measure before the decision-making body
(see paragraph 50 et seq. above).
It follows that
the Russian system, where test purchases and operative experiments fall entirely
within the competence of the operational-search bodies, is out of line with the
practice adopted by most Member States. The Court considers that this
shortcoming reveals a structural failure to provide for safeguards against
police provocation.
Turning back to the facts of the present case,
the Court will examine whether, despite the lack of systemic safeguards, the
police respected X’s status as an informant and ensured that his conduct did
not overstep the limits between legitimate infiltration and instigating an
offence.
. It observes that the police proceeded
with the test purchase immediately after X’s first report concerning the
applicant and without any attempt to
verify that information or to consider other means of investigating the
applicant’s alleged criminal activity. By contrast, in the case of Bannikova
(cited above, § 69), the test purchase was preceded by a number of
investigative steps, most notably telephone tapping authorised by a court,
which secured tangible evidence of the applicant’s pre-existing intent to sell
cannabis. That evidence was then available for examination in open court, and
it was given weight in the Court’s assessment of the covert operation in question
(ibid.). In the present case it considers that
the police did not make up for the lack of procedural guarantees, but rather
took unfair advantage of it.
The Court reiterates in this connection that
the burden of proof is on the authorities to show that there was no incitement,
but in practice they may be prevented from discharging this burden by the
absence of formal authorisation and supervision of the undercover operation
(see Ramanauskas, cited above,
§ 70; Teixeira de Castro,
cited above, § 38; and Bannikova, cited above, § 48).
In this case, this burden could not be
discharged because the conduct of the police in the undercover operation was
overlooked by the domestic authorities, and the file contains insufficient information
for the Court to rule on it. It notes, in particular, the fact, established in
the domestic proceedings, that the applicant had communicated with X through an
intermediary, “Ruslan”. Despite his role in the covert operation, this person was
not questioned in the proceedings against the applicant, apparently because of
the authorities’ failure to establish his identity. Accordingly, an important
element was missing from the domestic assessment of the alleged provocation. Moreover,
the content of “Ruslan’s” telephone conversations with X was not accounted for,
as they were not recorded. Likewise, the conversations between the actors in
the transaction that were intercepted by the police during the test purchase
were not recorded or otherwise reported. The Court does not overlook the need
for such recordings to be authorised by a court; yet it does not appear from
the case file that the timing of the test purchase was too tight, or that there
existed other obstacles to obtaining such authorisation, and the evidence thus
obtained would have had high probative value for the assessment of any
pre-existing intent on the part of the applicant to commit a criminal offence.
The Court considers that the informal and
spontaneous way in which the test purchase was ordered and implemented in the
present case was attributable, in particular, to the aforementioned absence of
adequate regulation of such covert operations. On the one hand, the legislator’s
failure to impose conditions on the use of this type of operational-search
measure left this technique open to abuse. And on the other hand, it prevented
the authorities from subsequently discharging their burden of proof that their
conduct remained strictly passive. In view of the fact that X had previously
been a police informant, and the lack of any evidence as to the manner of his
encounters with the applicant, the Court will presume that police incitement did
indeed take place.
Lastly, the Court notes that the domestic
courts expressly refused to enter into the merits of the applicant’s plea of entrapment,
in particular when the first-instance court rejected the evidence of X’s
previous involvement in test purchases and disallowed questions relating to his
alleged drug addiction and his criminal record as a drug dealer. Nor did the
appeal instance address the applicant’s plea of provocation at all, despite his
detailed and specific submissions in his points of appeal. It follows that the
applicant’s plea of incitement was not adequately addressed by the domestic
courts.
In the light of the foregoing considerations,
the Court concludes that the aggregate of these elements undermined the fairness
of the applicant’s trial.
(ii) Test purchase in the case of Mr Zolotukhin
The Court observes at the outset that this test
purchase, like the one examined above, was ordered on the sole basis that Ms Y,
allegedly a private individual, voluntarily informed the police about the
applicant’s criminal activity. As in the above case, the representation of Y as
an independent source proved to be untrue. It transpired at the trial that she had
been working as an informant for the police officer who conducted the test
purchase in the applicant’s case, and that she had previously participated in
other test purchases.
The Court further notes that Y, unlike X,
contended that she had previously bought heroin from the applicant, and
therefore accepts that the police had grounds to suspect the applicant of drug
dealing. However, it reiterates the distinction to be made between private
sources and police informants (see paragraphs 101-102 above) and considers that the same
principles apply here. Given Y’s status as an informant, for her to be involved
in the undercover activity the condition remained that her participation should
be essentially passive.
The Court will therefore turn to the question whether
the manner of her encounters with the applicant were capable of inciting him to
commit a criminal offence. This question, as in Mr Veselov’s case, cannot be
answered, for the Court does not find sufficient material in the case file to assess
her conduct. It observes that no trace was kept
of the initial phase of the operation when Y called the applicant, under the
instructions and in the presence of the police, and asked him to sell her
drugs. Despite the fact that this telephone call was already a part of
the test purchase, it was not recorded by any means, making it impossible to
verify whether at this point the applicant volunteered his services freely or
otherwise showed a pre-existing intent to commit a crime. It also notes
that the police went ahead with the test
purchase immediately after Y’s first report concerning the applicant and without any attempt to verify the
information or to consider other means of investigating the applicant’s alleged
criminal activity.
It considers that the above shortcomings were a result of the lack of
a regulatory framework providing for safeguards in the conduct of covert
operations, just as in Mr Veselov’s case (see paragraphs 104-106 above), and
that this prevented the authorities from discharging their burden of proof regarding
the “essentially passive” manner of the investigation. Like in the above case, in
view of Y’s status as a police informant, combined with the lack of reported information
on the manner of her encounters with the applicant, it may not be ruled out
that Mr Zolotukhin committed a criminal offence as a result of police
incitement.
The Court observes, next, that throughout the
judicial proceedings the applicant maintained that he had been incited to
commit a criminal offence. Accordingly, the domestic courts were under an
obligation to examine the plea of entrapment, including, in particular, 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 Ramanauskas,
cited above, § 71). The Court notes, however, that these questions received
only marginal attention from the first-instance court, and were not addressed at
all on appeal, despite having been raised in the applicant’s points of appeal. It
follows that the applicant’s plea of incitement was not adequately addressed by
the domestic courts.
In the light of the foregoing considerations,
the Court concludes that the aggregate of these elements undermined the fairness
of the applicant’s trial.
(iii) Test purchase in the case of Mr Druzhinin
The Court notes that this applicant, like the
other two, alleged that the buyer in his test purchase, Ms Z, was also a police
informant. However, unlike the applicants in the above two cases, he was unable
to substantiate that allegation. The Court will therefore assume that that in
his case the investigating authorities perceived Z as a private source.
The Court further notes that Z never claimed to
have bought drugs from the applicant prior to the test purchase, and that she
said so at the trial. Furthermore, she stated that as far as she knew he was
not selling drugs to anyone else and that she was positive he was not producing
them. What she did say to the police was that she could almost certainly make
him obtain drugs for her. The Court also observes that the police admitted that
they had had no other information about the applicant prior to that volunteered
by Z.
The Government suggested that the police had
been in possession of other prior information incriminating the applicant, allegedly
mentioned in a report by an officer of the Federal Service for Drug Control, dated
4 September 2008. The Court, however, agrees with the applicant that the report
in question referred to the information supplied by Z, and this is how the
domestic courts interpreted it. The Court therefore cannot accept that the test
purchase was ordered on any grounds other than Z’s affirmations. It follows
that the investigating authorities had no good reason to suspect the applicant
of drug dealing; the file reveals that they ordered the test purchase while
fully aware that it might be the first time the applicant had sold drugs.
. The
Court considers that the above decision cannot be described as anything other
than arbitrary, and sees it as a direct result of the lack of a regulatory
framework providing for safeguards in the conduct of covert operations (see
paragraphs 104-106 above). Just like the two test purchases examined above,
this one was ordered by a simple administrative decision of the same body that carried
it out. Similarly, no track was kept of the
initial phase of the operation, when Z called the applicant, under the
instructions and in the presence of the police, and asked him to sell her the drugs,
or of their ensuing telephone communications. The result of this omission was
the same as in the other two cases, that is, the authorities were left unable
to prove the applicant’s pre-existing intent to commit a crime.
As regards the judicial review of the applicant’s
plea of incitement, the Court notes that the first-instance court implicitly
rejected the plea without making any assessment or indicating its conclusions
on the issue. The appeal court limited its review on this point to a statement
that Z had previously bought drugs from the applicant, which demonstrated his
pre-existing intent. That finding, however, contradicted Z’s own
testimony at first instance, and it did not follow from any other evidence
examined by the first-instance or the appellate court. The Court therefore
concludes that the domestic courts failed to take the necessary steps to
determine whether there was any incitement, despite their obligation to do so
under Article 6 of the Convention.
The Court finds that all these factors
irreversibly undermined the fairness of the criminal proceedings against this
applicant.
(iv) Summary of the Court’s findings
The Court has found above that the applicants’
criminal conviction for drug offences was based primarily on the results of the
police-controlled test purchases. In none of these cases did the police
consider other investigative steps to verify the suspicion that the applicants
were drug dealers. With such a strong emphasis on the results of the covert
operations and their importance for the outcome of the criminal proceedings, it
was incumbent on the domestic authorities to ensure that the manner in which
the test purchases were ordered and conducted excluded the possibility of abuse
of power, in particular of entrapment. However, the Court found that the accountability
of the police for their officers’ and informants’ conduct could not be
established, largely because of a systemic failure, namely the absence of a clear
and foreseeable procedure for authorising test purchases. It reiterated its
case-law to the effect that the authorisation of a test purchase by a simple
administrative decision of the same body as the one which conducts the operation,
without any independent supervision, with no need
to justify the operation and virtually no formalities to follow, is in
principle inadequate (see paragraphs 103, 106, 117 and 123 above).
Having compared this system with practices adopted in other Member States, the
Court found that in most other countries the conduct of a test purchase and
similar covert operations is subject to a number of procedural restrictions (see
paragraphs 105-106 above). In Russia, by contrast, the operational-search bodies of the State are entrusted with an
intrusive investigative technique which apparently affords no structural
safeguards against abuse.
. In the circumstances of the present cases,
it was precisely the deficient procedure for authorising the test purchase that
exposed the applicants to arbitrary action by the police and undermined the
fairness of the criminal proceedings against them. The domestic courts, for
their part, failed to adequately examine the applicants’ plea of entrapment, and
in particular to review the reasons for the test purchase and the conduct of
the police and their informants vis-à-vis the applicants.
In the light of the foregoing the Court
considers that the criminal proceedings against all three applicants were
incompatible with the notion of a fair trial. There has accordingly been a
violation of Article 6 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, Mr Zolotukhin complained about the
alleged lack of legal assistance and the alleged lack of an opportunity to
examine certain witnesses. He relied on Articles 3, 4, 5 and 6 of the
Convention. The Court has examined these complaints as submitted by the
applicant. 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
application is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
Mr Veselov claimed 50,000 euros (EUR) in
respect of non-pecuniary damage. Mr Zolotukhin requested compensation for
non-pecuniary damage in an amount to be determined by the Court. Mr Druzhinin
claimed EUR 128,000 in respect of non-pecuniary damage, plus EUR 73,200 in
respect of pecuniary damage for loss of wages over five years’ imprisonment,
calculated on the basis of the monthly salary of EUR 1,000 that he would
have earned had he not been convicted of a crime set up by the police.
The Government considered that the acknowledgment
of a violation, if found by the Court, would constitute sufficient just
satisfaction in the present case. They contested the claims by Mr Veselov and
Mr Druzhinin as excessive and out of line with the awards made by the
Court in similar cases.
The Court considers that an award of just
satisfaction must be based in the present case on the fact that the applicants
did not have a fair trial on account of their criminal conviction for drug
offences 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 by Mr Veselov and Mr Druzhinin appear to be
excessive. Making its assessment on an equitable basis, the Court awards the
three applicants EUR 3,000 each in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
Furthermore, the Court refers to its settled
case-law to the effect 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 that the most
appropriate form of redress would, in principle, be the reopening of the proceedings, if
requested (see,
mutatis mutandis, Öcalan v. Turkey
[GC], no. 46221/99, § 210 in fine, ECHR
2005-IV; Malininas
cited above, § 43; and Popov v. Russia, no. 26853/04, § 264, 13 July
2006). The Court notes in this connection that Article 413 of the
Russian Code of Criminal Procedure and Article 392 of the Russian Code of Civil
Procedure provide the basis for the reopening of the proceedings if the Court finds
a violation of the Convention (see paragraph 49 above).
As regards the pecuniary damage claimed by Mr
Druzhinin, the Court would like to stress that the award of damages in this
case relates to the manner in which the proceedings were conducted, and there
is no link between that manner and the pecuniary damage claimed.
No conclusions about the applicants’ guilt or
innocence may be drawn from the finding of a violation. These are matters to be
assessed in the re-opened domestic proceedings. The Court notes that in case of
an acquittal in the re-opened proceedings they may claim compensation for pecuniary
and non-pecuniary damage suffered in account of their conviction, and the
domestic courts would then be in the best position to deal with such claims.
B. Costs and expenses
1. Mr Veselov
The applicant claimed 35,000 Russian roubles
(RUB) for costs and expenses incurred before the domestic courts and RUB
120,000 for those incurred before the Court, comprising RUB 60,000 in lawyer’s
fees relating to the submission of the application to the Court and RUB 60,000
for the filing of the reply to the Government’s observations. He included
receipts confirming these payments.
The Government replied that they saw no grounds
to award the applicant compensation for fees incurred in the domestic
proceedings, and contested the claim relating to the proceedings before the
Court on the grounds that the applicant did not state the hourly rates of his
counsel.
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 the above criteria, the Court grants Mr Veselov’s claims in full and awards
the applicant EUR 4,000 covering costs under all heads.
2. Mr Zolotukhin
The applicant explained that he could not
specify or substantiate his claims under this head, having lost the supporting
documents.
The Government made no comment.
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 the above criteria, the Court will not make any award to Mr Zolotukhin under
this head.
3. Mr Druzhinin
The applicant claimed RUB 100,000 for costs and
expenses incurred before the Court. He presented a copy of his service
agreement with the lawyer, Mr. Tuchin, which contained a breakdown of the fees
payable for the submission of the initial application (RUB 10,000), for the
full statement of facts and complaints (RUB 26,000), for the reply to the
Government’s observations (RUB 60,000) and for correspondence with the Court
(RUB 4,000).
The Government contested this claim on the
grounds that the applicant did not state the hourly rates of his counsel.
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 the above criteria, the Court grants Mr Druzhinin’s claims in full and
awards the applicant EUR 2,600 covering costs under all heads.
C. Default interest
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
admissible and the remainder of the applications inadmissible;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention in respect to all three applicants;
4. Holds
(a) that the respondent State is to pay the
applicants, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, the
following amounts to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) to each applicant EUR 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) to Mr Veselov EUR 4,000 (four thousand euros),
plus any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(iii) to Mr Druzhinin EUR 2,600 (two thousand six
hundred euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(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;
5. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 2 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
