European Court of Human Rights

FIRST SECTION

Application no. 44885/06
by Nikolay Nikolayevich RYAZANOV
against Russia
lodged on 5 September 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Nikolay Nikolayevich Ryazanov, is a Russian national who was born in 1968 and lives in the Kurgan Region. He is currently serving a sentence of imprisonment in correctional colony FGU-4 in the Sverdlovsk Region.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant has clinical stage 3 HIV and suffers from chronic viral hepatitis C. He was diagnosed with these illnesses at some point before the events outlined below.

In 1996 and 2001 he was convicted of robbery.

1.  Events of 5 November 2004

On 5 November 2004 the Kurgan Department of the Federal Drugs Control Service (“the Drugs Control Service”) carried out an operational-search activity “test purchase”. The decision to carry out the test purchase was based on the operational information that an individual known as “Nikolay” was selling drugs at 81b Komsomolskaya St., Kurgan.

The officers of the Drugs Control Service instructed F., a drug addict and the applicant’s acquaintance since approximately 2002, to purchase drugs from Nikolay at the above address and gave him money for the test purchase. The officers photocopied the banknotes and searched F. in the presence of P. and M., two lay witnesses. F. was nicknamed “Klimov” in the documents related to the test purchase. Klimov bought a dose of heroin from Nikolay, took part of the dose for personal use and gave the remainder to the Drugs Control Service officers who were waiting for him in a car nearby. It appears that Klimov was questioned immediately after the test purchase in the presence of the lay witnesses and explained to the police that he had bought drugs from a man called Nikolay, without providing any further details on his identity.

According to the applicant, he was not present at the above address on that date. However, the official version of events is that the applicant supplied Klimov with drugs (see below).

The applicant was not arrested and no criminal proceedings were brought against him immediately after these events.

2.  The test purchase of 15 April 2005

On 15 April 2005 the Drugs Control Service decided to carry out a test purchase of drugs from the applicant. It appears that the decision was based on information that he was involved in drug trafficking. The case file does not contain a copy of the relevant decision.

On 15 April 2010 F., this time nicknamed “Suslov”, was provided with banknotes which had been photocopied by the Drugs Control officers.

At 10 a.m. Suslov met I., the applicant’s acquaintance, and gave him the banknotes so that he could buy heroin from the applicant.

At some point between 10 a.m. and 12 a.m. on that date I. met the applicant. He gave him the banknotes and wrote a note to the effect that the amount paid represented an old debt I. owed to the applicant.

The official account of the events is that the applicant gave I. heroin for Suslov. According to the applicant, he did not supply drugs to I.

At some point I. transferred the dose of heroin to Suslov. The conversation between Suslov and I. during the test purchase was recorded.

At some point I. was arrested.

3.  The applicant’s arrest and alleged ill-treatment

Later on that date the applicant was arrested by the Drugs Control officers at a flat belonging to R., the applicant’s partner. The police asked the applicant and R. to open the door. The applicant refused, and the officers broke down the door.

At 4.30 p.m. on the same date the officers transferred him to the Drugs Control Service’s office in Kurgan.

According to the applicant, the officers severely beat him up until the early morning of 16 April 2005, attempting to obtain a self-incriminating statement from him. The applicant chose to remain silent and refused to make a statement.

According to a medial certificate of 15 April 2005 issued by the local ambulance station (cited in the prosecutor’s refusal to open criminal proceedings dated 17 May 2005, see below), at some point on the date of the arrest the applicant was examined by an ambulance doctor and diagnosed with bruising to the chest. It appears that the applicant told the doctors that he had fallen on the floor and hit himself. The applicant has not submitted a copy of the certificate or provided details of the medical examination.

The applicant submits that I., also arrested on that date, was subjected to ill-treatment and confessed to having been involved in drug trafficking together with the applicant.

On 16 April 2005 an investigator from the Drugs Control Service recorded the applicant’s arrest. On the same date the Kurgan Town Court authorised his arrest and detention pending the completion of the investigation (see below).

On 17 April 2005, upon his arrival at remand centre IZ-45/1 in Kurgan, the applicant was examined and did not display any visible injuries. He complained of chest pain and submitted that he had been beaten by the policemen during his arrest.

On 18 April 2005 the applicant was examined at the remand centre medical unit and the following injuries were detected on him: multiple bruises and an abrasion on the upper lip, as well as a bruise on the right wrist.

4.  Search of R.’s flat and the applicant’s attempt to challenge its lawfulness

From 2 p.m. to 4 p.m. on 15 April 2005 the officers of the Drugs Control Service searched R.’s flat and seized various items belonging to her, the applicant and another individual, including 15,000 Russian roubles (RUB) belonging to R., RUB 5,760 belonging to the applicant and RUB 2,800 given to F. to pay for the test purchase. No prior authorisation was issued by a domestic court.

On 19 April 2005 the Kurgan Town Court, judge K. sitting as a single judge, confirmed the lawfulness of the search. On 20 June 2005 the Kurgan Regional Court upheld the decision on appeal.

5.  Available information on the applicant’s pre-trial detention

On 16 April 2005 the Kurgan Town Court ordered the applicant’s arrest and held that he should be remanded in custody pending the completion of the investigation. The applicant appealed, arguing that he had been beaten by police officers and referring to his poor state of health.

On 27 April 2005 the Kurgan Regional Court dismissed the applicant’s appeal against the decision.

On 1 December 2005 the medical unit of the remand prison issued a certificate confirming that the applicant had clinical stage 3 (latent) HIV and suffered from chronic viral hepatitis C, but that he was able to stand trial.

On 8 December 2005 during the examination of the applicant’s criminal case he applied for release, arguing that he had been suffering from tuberculosis and had clinical stage 3 HIV. It appears that he did not submit copies of medical certificates in support of his claim. On the same date the court rejected the application because the applicant had been charged with serious crimes, had a prior criminal record and therefore might flee from justice if at liberty. The court found no evidence that the applicant’s state of health made him unfit for detention.

On 31 January 2006 the applicant again lodged an application for release in the course of the trial. On the same date the trial court rejected it for the same reasons as before.

The applicant submits that at some point in detention he developed hypertension. He has not provided any details or medical documents in support of this statement.

6.  Criminal proceedings against the applicant

On 16 April 2005 applicant was charged with the sale of drugs to Suslov.

On the same date he was questioned in the presence of state-appointed counsel. It appears that he signalled to the investigator that he had been beaten during his arrest.

On 16 April 2005 the investigator conducted a face-to-face confrontation between I. and the applicant in the presence of their lawyers. I. confirmed his confession as regards his and the applicant’s involvement in drug trafficking. The applicant chose to remain silent.

On 19 August 2005 the investigator of the Drugs Control Service further charged the applicant with the sale of drugs to Klimov on 5 November 2004 and establishing a drug den. The charges were based on the statements of undercover agents Klimov and Suslov. The identities of the agents were not disclosed during the pre-trial investigation.

On 20 September 2005 the Kurgan Town Court, judge K. sitting as a single judge, held the first hearing in the criminal case.

The hearings were adjourned on several occasions due to the failure of Klimov and Suslov to appear at the court room.

At some point during the trial the identities of Klimov and Suslov were disclosed. The court established that these were the nicknames for F. He appeared at the courtroom and the parties were able to put questions to him. F. identified the applicant as the person who had sold drugs to him on 5 November 2004 and 15 April 2005.

The following evidence was examined by the court:

(i)  the applicant’s depositions;

(ii)  I.’s pre-trial confession and submissions made before the court. When cross-examined in court I. challenged the admissibility of his pre-trial statements, arguing that he had confessed under duress. The trial court, however, relied on I.’s pre-trial depositions, having found that they had been corroborated by the other items of evidence. In the court’s view, I. had changed his account of the events in an attempt to escape responsibility for his unlawful actions;

(iii)  the record of the pre-trial confrontation between the applicant and I.;

(iv)  testimonies of four lay witnesses concerning the two test purchases, as well as the depositions of Sh., D. and A., officers involved in the operation on 15 April 2005. The trial court discovered various discrepancies in the witnesses’ accounts of the events given in court and decided that their pre-trial depositions should be read out;

(v)  F.’s pre-trial depositions and his statements made in open court; and

(vi)  the applicant’s mother’s testimony, by which she confirmed that the applicant had not been living in R.’s flat at the time of the events, as well as her pre-trial depositions.

The court called four defence witnesses, including R., upon the applicant’s request.

The applicant and his lawyer put questions to the witnesses and raised various objections to the admissibility of their statements.

The trial court examined various procedural documents related to the test purchases of 5 November 2004 and 15 April 2005. These documents bore the signatures “Klimov” and “Suslov”. The agent’s identity was not disclosed in these materials.

The applicant requested that an expert examination of the agent’s handwriting be held, alleging that the signatures were fake. It appears that his request was rejected.

The court also studied I.’s handwritten note made on 15 April 2005, several expert reports in respect of the heroin sold to F., as well as various other items of evidence.

The applicant lodged several motions challenging the admissibility of various items of evidence.

In particular, on 21 December 2005 the trial court dismissed the applicant’s objection to the admissibility of the search record. The court’s decision, issued by judge K., contained the following paragraph:

“Having examined the evidence in the case the court does not find any grounds to exclude it as inadmissible, as it was collected in accordance with law... [The court] considers that the applicant’s guilt has been proved on all charges.”

On 19 June 2006 the applicant challenged judge K., claiming that he had violated the presumption of innocence. He further asked the court to order an additional expert examination of the drugs seized from F. On the same date, the trial court rejected the latter motion as unfounded, having mentioned that there were no grounds to doubt the expert reports already admitted to the case file. As regards the challenge to judge K., the court established that the above paragraph had been included in the decision of 21 December 2006 due to a technical error and modified the decision so that the reference to the applicant’s guilt was excluded.

The applicant subsequently requested that the audio recording of the test purchase of 15 April 2005 be admitted into evidence because he submitted that the recording could prove that at some point F. had replaced the substance purchased during the test purchase with heroin. He also asked the court to order an additional expert examination of the audio recording. The court refused to admit the recording as irrelevant and consequently rejected the request to order its expert examination.

At some point the prosecutor retracted the charge of establishing a drug den. On 21 June 2006 the Kurgan Town Court dismissed that part of the criminal proceedings against the applicant.

On 21 June 2006 the Kurgan Town Court convicted the applicant of two counts of the sale of heroin and sentenced him to ten years’ imprisonment. It ordered the forfeiture of several items seized from the applicant, including the RUB 2,800 given to the applicant by F. and the RUB 20,760 seized from both R. and the applicant during the search of the flat. The trial court rejected the applicant’s and I.’s allegations of ill-treatment as unfounded (see below).

On 1 and 3 July 2006 the applicant and his lawyer lodged appeals against the judgment.

On 26 June 2006 the applicant lodged a supplement to his statement of appeal. He submitted, in particular, that the trial court had been biased. Judge K. had not allowed the applicant’s motions made during the trial. The court had unlawfully admitted I.’s confession, which had been made under duress. The witnesses’ testimonies had been contradictory and the evidentiary base extremely poor. The court had incorrectly established the circumstances of the case. As a result, the applicant had been convicted on fabricated charges.

On 10 July 2006 the trial record was issued and on 17 July 2006 the applicant started studying it. At some point he raised more than eighty objections to the record.

By two separate decisions of 31 July and 1 August 2006 the Town Court allowed two minor objections and dismissed the remainder as unfounded.

I. also appealed against the judgment, arguing, in particular, that he had committed the crime as a result of police incitement.

On 31 August 2006 the Kurgan Regional Court amended the trial judgment, having recharacterised the applicant’s acts as attempted sale of heroin. It annulled the lower court’s findings as regards the forfeiture and ordered the lower court to issue a separate decision in this respect. The appeal court upheld the remainder of the first-instance court’s findings. It confirmed that the trial court had correctly assessed the evidence, including the witnesses’ testimonies; that the lay witnesses’ depositions had not been contradictory; and that there had been no evidence that I. had testified under duress. The court rejected the entrapment argument for the reason that the applicant, F. and I. had been drug users and there were no grounds to believe that they had been induced to commit the crimes by State agents.

By a separate decision of 20 September 2006 the town court ordered that R.’s belongings, including the RUB 15,000 seized on 15 April 2005, be returned to her.

On 14 May 2010 the Kurgan Regional Court by an additional appeal judgment annulled the first-instance court’s findings as regards the forfeiture of the remaining amount of RUB 5,760 and ordered a new examination of this part of the case.

On 17 June 2010 the Kurgan Town Court issued a clarification to the judgment of 21 June 2006. The court established that the above amount belonged to the applicant. It found no evidence that the money had been obtained as a result of unlawful activity. Accordingly, there were no grounds to order the forfeiture of the money. The court ordered that the RUB 5,760 be returned to the applicant.

7.  Attempts to initiate criminal proceedings in respect of the alleged ill-treatment

(a)  Complaint during the proceedings concerning the applicant’s pre-trial detention

On 16 April 2005 the Kurgan Town Court authorised the applicant’s pre-trial detention (see above). In his appeal against the decision, the applicant submitted that he had been ill-treated by police officers. On 27 April 2005 the Kurgan Regional Court dismissed the applicant’s appeal against the decision without having addressed the ill-treatment complaint.

(b)  Initial complaint to the prosecutor’s office

On 14 May 2005 the applicant complained of ill-treatment to the Kurgan Prosecutor’s Office, asking for criminal proceedings to be brought against the Drugs Control Service officers involved.

On 17 May 2005 the Kurgan Prosecutor’s Office refused to institute criminal proceedings, for the lack of evidence of a crime. The decision referred to the medical certificates confirming the applicant’s injuries, various records in respect of the test purchase of 15 April 2005, reports by the Drugs Control Service officers who had participated in the applicant’s arrest and the lay witnesses’ depositions. The officers denied their having used force against the applicant. The prosecutor further observed that, as followed from the arrest record of 16 April 2005 made in the presence of counsel, the applicant had been questioned “upon his arrest” and had not made any claims or complaints. The applicant “was not sincere” because he had not informed the prosecutor’s office of his refusals to open the door to the police on 15 April 2005. His complaint aimed, in essence, to challenge the evidence collected during the test purchase as inadmissible. There was nothing to suggest that the injuries had been inflicted on him by the Drugs Control Service officers.

It appears that at some point this decision was annulled and the case sent for additional inquiry.

On 9 July 2005 the Kurgan Prosecutor’s Office held an additional inquiry and refused to bring criminal proceedings in respect of the alleged ill-treatment.

(c)  Complaint to the trial court

On 10 November 2005 the applicant applied to the trial court with a request that an inquiry into his allegations of ill-treatment be opened. He signalled to the court that he was dissatisfied with the prosecutor’s office’s refusal to initiate criminal proceedings upon his complaint.

According to the trial record, on 17 November 2005 the trial court advised the applicant that it was not competent to initiate criminal proceedings and forwarded his motion of 10 November 2005 to the prosecutor’s office for examination.

During the trial the applicant submitted that he had been ill-treated by the Drugs Control Service officers.

The trial court found established that the Drugs Control Service officers had used force against the applicant during the arrest. Such use of force had been lawful and aimed at stopping the applicant’s and I.’s criminal activity. In particular, the applicant had refused to open the door to the police officers and they had had to force it open. The court further referred to the prosecutor’s office’s refusal to open criminal proceedings and rejected the ill-treatment complaint as unfounded.

(d)  The applicant’s complaint of 2007 about the refusal to open criminal proceedings

On an unspecified date after the trial the applicant was transferred to correctional colony YaV-48/1 in the Chelyabinsk Region and subsequently to correctional colony no. FGU-4 IK-14 in the Sverdlovsk Region.

At some point in 2007 the applicant challenged the prosecutor’s decision of 9 July 2005 before the Kurgan Town Court under Article 125 of the Code of Criminal Procedure. He requested to be present at the hearing.

On 9 January 2007 the court scheduled the hearing of his case for 2 February 2007 and decided that there was no need to ensure the applicant’s presence. On 21 January 2007 the applicant received notification of this. He was advised of his right to make additional submissions and to be represented in the proceedings. It appears that the applicant did not make such submissions.

On 2 February 2007 the Kurgan Town Court dismissed his complaint and upheld the refusal to institute criminal proceedings. The court found that the applicant’s allegations were contradictory. In particular, he had complained that he was beaten at the Drugs Control Service’s office. However, it followed from the remand centre records and from a note made by his representative in the criminal proceedings that he had complained of being beaten during his arrest. In addition, he had informed the ambulance doctors that his injures had been self-inflicted. Furthermore, he had not had any visible injuries upon his arrival at the remand centre. Injuries had only been detected on 17 April 2005. The court concluded that the applicant’s allegations were contradictory and unsubstantiated, and there was nothing to suggest that the Drugs Control Service officers had caused the injuries complained of.

The applicant was not present or represented at the hearing.

The applicant appealed against the decision. He argued, in particular, that the court had not called L. and I., his co-accused who had also been detained at the Drugs Control office on 15 April 2005 and who had personally witnessed the applicant’s ill-treatment. He further complained that he had not been afforded an opportunity to study the documents pertaining to the case or to defend himself in person and submitted that his defence rights had therefore been affected.

On 19 April 2007 the Kurgan Regional Court upheld the decision on appeal. The court found that the first-instance court’s analysis of the circumstances of the alleged ill-treatment had been thorough and detailed and the conclusions reached lawful and reasonable. The appeal court further observed that the applicant had been timeously notified of the hearing. Therefore, his absence from the courtroom on the date of the examination of the case had not constituted grounds for adjourning the case. Furthermore, under domestic law, a detainee could be only brought from a correctional colony to participate in court proceedings as a witness, an accused or a victim in the criminal proceedings. In the proceedings at hand, the applicant’s procedural status had not mandated his being brought to court.

The applicant was not present or represented.

COMPLAINTS

The applicant complains under Article 3 of the Convention that Drug Control Service officers threatened him during the search of R.’s flat and ill-treated him on 15 April 2005. He submits under the same Article that the investigation into his allegations of ill-treatment was ineffective.

He further avers under Article 3 that his pre-trial detention was unreasonably long and was extended several times regardless of his poor state of health and that the extensions were based on insufficient reasons.

He complains under Articles 6 and 13 that the criminal proceedings against him were unfair in that:

(a)  he was convicted as a result of police incitement and the charges against him were based on the testimonies of undercover agent F., nicknamed “Klimov” and “Suslov”;

(b)  trial court judge K. was biased. In particular, on 19 April 2005 K. had authorised the search of R.’s flat. Furthermore, the decision of 21 December 2005 contained findings on the applicant’s guilt;

(c)  the charges in respect of the events of 5 November 2004 were “fabricated” and the evidence in respect of that count of the sale of drugs was manifestly insufficient;

(d)  the trial court disregarded the defence witnesses’ testimonies and incorrectly assessed the evidence;

(e)  he only received a copy of the trial record nineteen days after the delivery of the first-instance judgment and therefore was unable to submit his grounds of appeal within the ten-day time-limit established by domestic law; and

(f)  the trial court disallowed his objections to the trial record, and the record itself was inaccurate.

He complains under Article 6 § 2 that judge K.’s ruling of 21 December 2005 violated the presumption of innocence.

He complains under Article 8 that the search of R.’s apartment violated R.’s right to respect for her home and that the domestic court’s decision authorising the search was unlawful. The applicant submits under Article 13 that his own numerous attempts to raise this issue before various domestic authorities were ineffective.

He submits under Article 1 of Protocol No. 1 that the seizure of his money, as well as R.’s various belongings, was unlawful.

By letter of 24 May 2007 the applicant complains under Article 6 §§ 1 and 3 (c) that he was neither present nor represented at the hearings of 2 February 2007 at the Kurgan Town Court and 19 April 2007 at the Kurgan Regional Court.

QUESTIONS TO THE PARTIES

1.   Did the applicant exhaust domestic remedies in respect of his complaint of ill-treatment under Article 3 of the Convention?

2.  Was the applicant subjected to treatment contrary to Article 3 of the Convention following his arrest on 15-16 April 2005? The Government are invited to address the following factual questions.

(a)  Once in the hands of the police:

(i)  Was the applicant informed of his rights? If so, when, and what rights was he informed about?

(ii)  Was he given the possibility of informing a third party (family member, friend, etc.) about his detention and his location and, if so, when?

(iii)  Was he given access to a lawyer and, if so, when?

(iv)  Was he given access to a doctor and, if so, when?

(b)  What activities involving the applicant were conducted at the premises of the Drugs Control Service on 15-16 April 2005, and at which times of the day? If they were carried out at night, was this lawful? What was the applicant’s procedural status? Where was the applicant held on those dates? What confessions and/or statements did the applicant give during that period (please submit relevant documents, in particular, records containing the applicant’s statements/confessions)? Was the applicant given access to a lawyer before and during each such activity?

The Government are requested to submit relevant documents in response to each of the above questions. They are further requested to submit a copy of the medical certificate of 15 April 2005 referred to in the prosecutor’s decision of 17 May 2005.

3.  Have the authorities complied with their positive obligation under Article 3 of the Convention to carry out an effective investigation into the applicant’s allegations of ill-treatment on 15-16 April 2005? In particular:

(a)  Were the investigators (investigating authority) who carried out the inquiry into the applicant’s allegations of police ill-treatment independent from the investigators (investigating authority) who were responsible for investigating the criminal case against the applicant?

(b)  Which officers (police, Drugs Control Service, etc.) from which police department(s) were involved in the inquiry into the applicant’s complaint of police ill-treatment? What operational and other activities did they carry out in the course of the inquiry?

4.  Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention as required by Article 13 of the Convention?

5.  Has the applicant’s detention been based on “relevant and sufficient” reasons and has it been compatible with the requirements of Article 5 § 3 of the Convention?

6.  Did the applicant exhaust domestic remedies in respect of his complaint of police incitement on 5 November 2004 and 15 April 2005? Would an arguable complaint of incitement in the applicant’s case have constituted a substantive defence under domestic law, given grounds for the exclusion of evidence or lead to similar consequences (see Bannikova v. Russia, no. 18757/06, §§ 53-54, 4 November 2010)?

7.  If the applicant exhausted domestic remedies in respect of the above complaint, and having regard to the applicant’s specific allegations, did he have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular:

(a)  Did the undercover technique used to investigate the drug offence in the present case amount to an entrapment (see Ramanauskas v. Lithuania ([GC], no. 74420/01, § 51, ECHR 2008-...)?

(b)  With regard to the events of 5 November 2004 and 15 April 2005, did the “test purchases” in question target the applicant? The Government are requested to submit copies of the decisions ordering the test purchases in question, as well as other relevant documents concerning the two test purchases.

(c)  Before the applicant was approached by the undercover agent, did the investigative authorities possess preliminary information pointing to the applicant’s prior criminal intent? Did this information come from a verifiable source unconnected with the individuals involved in the undercover operation (see Vanyan v. Russia, no. 53203/99, § 49, 15 December 2005, and Khudobin v. Russia, no. 59696/00, § 134, ECHR 2006-XII (extracts))? Did the authorities have good reasons for mounting the covert operation (see Ramanauskas, cited above, §§ 63 and 64, and Malininas, v. Lithuania, no. 10071/04, § 36, 1 July 2008)? What other investigative activities were carried out as regards the applicant prior to the test purchase?

(d)  Did the undercover agent exert such an influence on the applicant as to incite the commission of an offence that would otherwise not have been committed? Was the applicant subjected to any pressure, either through prompting, persuasion, pleading for compassion or otherwise on the part of the undercover agent to commit the offence (see Malininas v. Lithuania, cited above, § 37; Vanyan, cited above, §§ 11 and 49; and Ramanauskas, cited above, § 67)?

(e)  Was the procedure authorising the test purchase clear and foreseeable (Vanyan, cited above, §§ 46 and 47, and Khudobin, cited above, § 135)? Did the decision authorising it refer to the information as to the reasons for and purpose of the planned test purchase?

(f)  Was the test purchase carried out in the present case subject to any judicial control or other independent supervision (see Milinienÿ v. Lithuania, no. 74355/01, § 39, 24 June 2008)?

(g)  Was the applicant afforded adequate procedural safeguards enabling him to raise a complaint of entrapment before the national courts (see Ramanauskas, cited above, §§ 69-70)?

(h)  Was the issue of entrapment examined in an adversarial, thorough and comprehensive manner? Was all relevant information, particularly regarding the purported suspicions about the applicant’s previous conduct, put openly before the trial court or tested in an adversarial manner (see V. v. Finland, §§ 76 et seq., and Malininas, § 36, both cited above; and Bulfinsky v. Romania, no. 28823/04, 1 June 2010)?

(i)  Did the courts assess 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?

(j)  Were the undercover agent and other witnesses who could testify on the issue of incitement heard in court and cross-examined by the defence (see Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238; Sequeira v. Portugal (dec.), no. 73557/01, ECHR 2003-VI; Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004-IV; Bulfinsky, § 45, cited above; and Kuzmickaja v. Lithuania (dec.), no. 27968/03, 10 June 2008)? Was the evidence related to the two test purchases subject to adversarial proceedings?

8.  As regards the proceedings concerning the applicant’s challenge to the prosecutor’s refusal to commence criminal proceedings which ended with the final judgment of 19 April 2007 by the Kurgan Regional Court: having regard to the fact that at no stage of the civil proceedings was the applicant brought to the hearings, do the circumstances of the case disclose an infringement of the applicant’s right to a fair trial as guaranteed by Article 6 § 1 of the Convention? In particular, was the applicant afforded an opportunity to attend the hearings?

9.  Having regard to the fact that the applicant’s opponents were present at the above-mentioned hearings and made submissions to the court, has there been an infringement of the applicant’s right to equality of arms enshrined in Article 6 § 1 of the Convention?