Information Note on the Court’s case-law No. 173
Lagutin and Others v. Russia - 19678/07, 52340/08, 6228/09 et al.
Judgment 24.4.2014 [Section I] See:  ECHR 439
Failure by domestic courts adequately to examine allegations of police entrapment: violation
Facts - The five applicants were convicted, in four unrelated sets of proceedings, of drug dealing after their pleas of police entrapment were rejected by the domestic courts. In each case, the police had testified that they had ordered the test purchases because they had received preliminary “operational information” that the applicants had previously been involved in drug dealing. This allegation was denied by the applicants, who said that they would not have become involved in dealing, as opposed to mere possession of drugs for their personal use, had they not being lured into it by the police and their informants. They were, however, unable to challenge the alleged operational information at trial because it was classified as confidential.
In their applications to the European Court, the applicants complained that they had been unfairly convicted of the offences following police incitement and that their plea of entrapment had not been properly examined by the domestic courts.
Law - Article 6 § 1: The Court reiterated that while the use of undercover agents could be a legitimate investigative technique for combating serious crime, adequate safeguards against abuse had to be in place. In cases where the main evidence originated from a covert operation, such as a test purchase of drugs, the authorities had to be able to demonstrate good reasons for mounting the operation. In particular, they had to have concrete and objective evidence to show that initial steps had already been taken to commit the offence. Any investigation of this type had to be conducted in an essentially passive manner. Further, any allegation by an accused of police incitement had to be examined by the courts in an adversarial procedure that was thorough, comprehensive and conclusive and it was for the prosecution to demonstrate the absence of incitement. If, owing to a failure to disclose the case file or the conflicting nature of the parties’ interpretation of the events, the Court was unable to establish whether an accused had in fact been subjected to police incitement, the question of the procedural review by the domestic courts assumed decisive importance.
In each of the applicants’ cases the police had referred to preliminary “operational information” that the applicants had previously been involved in drug dealing. However, the trial courts had not sought to clarify the content of the allegedly incriminating operational files and the Government had not provided any further details. The Court was therefore unable to determine whether the authorities had had good reasons for mounting the covert operations or whether pressure had been exerted on the applicants to commit the offences.
Turning to the procedural test, the Court noted that the applicants’ convictions had in each case been based entirely or predominantly on evidence obtained through police controlled test purchases with the direct participation of undercover police officers or informers. In previous cases against Russia, the Court had found that test purchases and operative experiments fell entirely within the competence of the operational search bodies and that the system revealed a structural failure to provide safeguards against police provocation. In these circumstances, the trial courts - confronted with an arguable allegation that undercover police officers and informants had not acted in a passive manner - had been under an obligation to establish in adversarial proceedings the reasons why the operation had been mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicants had been subjected. Given the lack of a sufficient legal framework or adequate safeguards against police provocation, the judicial examination of an entrapment plea had been the only means of verifying whether there were valid reasons for an undercover operation and whether the police or the informants had remained essentially passive.
However, the trial courts had made no attempt to check police assertions that they had pre-existing “operational information” and had accepted the police officers’ unconfirmed statements that they had good reasons to suspect the applicants. This failure to address the allegations of entrapment, which in the applicants’ cases were inseparable from the determination of their guilt, had compromised the outcome of the trials beyond repair, and was at odds with the fundamental guarantees of a fair trial, in particular the principles of adversarial proceedings and the equality of arms between the prosecution and the defence.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 each in respect of non-pecuniary damage with the exception of the fourth applicant, who made no claim for just satisfaction.
(For a case where the judicial examination of the plea of incitement was found by the Court to have been sufficient, see Bannikova v. Russia, 18757/06, 4 November 2010, Information Note 135; and for a case concerning the absence of a regulatory framework in Russia for authorising test purchases, see: Veselov and Others v. Russia, 23200/10, 24009/07 and 556/10, 2 October 2012, Information Note 156)
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