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You are here: BAILII >> Databases >> European Court of Human Rights >> YEGOROV AND OTHERS v. RUSSIA - 51643/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2016] ECHR 258 (15 March 2016)
URL: http://www.bailii.org/eu/cases/ECHR/2016/258.html
Cite as: [2016] ECHR 258
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THIRD SECTION
CASE OF YEGOROV AND OTHERS v. RUSSIA
(Applications nos. 51643/08, 54070/08, 20094/09, 35161/09, 4619/10, 62237/10, 67534/10, 73323/10, 29637/11, 32804/11, 41447/11, 46131/11 and 54726/12)
JUDGMENT
STRASBOURG
15 March 2016
This judgment is final but it may be subject to editorial revision.
In the case of Yegorov and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helena Jäderblom,
President,
Dmitry Dedov,
Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 23 February 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in thirteen applications (nos. 51643/08, 54070/08, 20094/09, 35161/09, 4619/10, 62237/10, 67534/10, 73323/10, 29637/11, 32804/11, 41447/11, 46131/11 and 54726/12) 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 thirteen Russian nationals. The application numbers, the dates of lodging the applications and the dates of their communication, the applicants’ names, their personal details and the names of their legal representatives, as well as the information concerning the relevant domestic judgments, are set out in the Appendix.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3. The applicants each alleged that they had been convicted of drug offences following entrapment by the police in violation of Article 6 of the Convention.
4. On 9 February 2015 the applications were communicated to the Government. On the same date the Court informed the Government that the issues raised by these applications are already the subject of well-established case-law of the Court, that the Court envisaged assigning them to a Committee of three judges and that the observations were not requested but the Government could submit them if they so wished.
5. On 8 June 2015 the Government submitted observations in the cases of Mr Perfilyev and Mr Sinyayev (application nos. 67534/10 and 46131/11).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing.
7. The applicants disagreed with their conviction and argued that the police had incited them to commit drug-related offences.
II. RELEVANT DOMESTIC LAW
8. The relevant domestic law governing the use of undercover operations at the material time is summed up in the Court’s judgments in the cases of Lagutin and Others v. Russia (nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, 24 April 2014); Veselov and Others v. Russia (nos. 23200/10, 24009/07 and 556/10, 2 October 2012); Bannikova v. Russia (no. 18757/06, 14 October 2010); Vanyan v. Russia (no. 53203/99, 15 December 2005); and Khudobin v. Russia (no. 59696/00, ECHR 2006-XII (extracts)).
THE LAW
I. JOINDER OF THE APPLICATIONS
9. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical issues under the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
10. The applicants complained that they had been unfairly convicted of drug offences which they had been incited by the police to commit and that their plea of entrapment had not been properly examined in the domestic proceedings, in violation of Article 6 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
11. The Government claimed that that Mr Perfilyev’s agent provocateur complaint is manifestly ill-founded.
12. The Government’s observations concerning the admissibility were transmitted to Mr Perfilyev for information. He did not submit any comments.
13. Having considered the Government’s arguments and the documents before it, the Court notes that Mr Perfilyev had made out a prima facie agent provocateur complaint falling under well-established case-law of the Court concerning drug undercover operations in Russia (see paragraphs 8 above and 16 below). Accordingly, the Court dismisses the Government’s objections as to the admissibility of Mr Perfilyev’s agent provocateur complaint and finds it admissible.
14. The Court also finds that the complaints concerning entrapment by the police brought by the other twelve applicants under Article 6 § 1 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
15. The Government further claimed that the test purchases conducted in the cases of Mr Perfilyev and Mr Sinyayev had been lawful and had not involved any entrapment by the police. They maintained that the police had ordered the test purchases on the basis of incriminating confidential information and that the applicants had voluntarily agreed to sell drugs. The Government’s observations were transmitted to the above applicants for information. They did not submit any comments. The Government submitted no observations on the merits of the cases of the remaining applicants.
16. The Court reiterates that the absence in the Russian legal system of a clear and foreseeable procedure for authorising test purchases remains a structural problem which exposes applicants to arbitrary action by the police and prevents the domestic courts from conducting an effective judicial review of their entrapment pleas (see Lagutin and Others, § 134, and Veselov and Others, §§ 126-27, both cited above). The present cases are identical to other Russian cases on entrapment, in which the Court has consistently found violations on account of the deficiencies in the existing procedure for the authorisation and administration of test purchases of drugs (see Lebedev and Others v. Russia, nos. 2500/07, 43089/07, 48809/07, 52271/07 and 54706/07, §§ 12-16, 30 April 2015, and Yeremtsov and Others v. Russia, nos. 20696/06, 22504/06, 41167/06, 6193/07 and 18589/07, §§ 17-21, 27 November 2014; Lagutin and Others, Veselov and Others; Vanyan and Khudobin, all cited above).
17. The Court finds no reason to depart from its earlier findings on the matter and holds that the criminal proceedings against all applicants in the present cases were incompatible with the notion of a fair trial. Having regard to its well-established case-law on the subject, the Court considers that there has been a violation of Article 6 of the Convention with regard to each of the thirteen applicants.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
18. 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
1. Pecuniary damage
19. The applicants claimed the following amounts in respect of pecuniary damage:
- Mr Chebotarev - 1,022.664 Russian roubles ((RUB), about 13,000 euros (EUR));
- Mr Timakov - EUR 70,370;
- Mr Spiridonov - EUR 64,089.69;
- Mr Raspopov - EUR 10,000;
- Mr Zhilin - RUB 362,473.26 (about EUR 4,700);
20. The Government submitted that the applicants had failed to substantiate their claim in respect of pecuniary damage.
21. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the applicants; it therefore rejects this claim.
2. Non-pecuniary damage
22. The following applicants claimed the amounts indicated below in respect of non-pecuniary damage:
- Mr Pryakhin - RUB 5,000,000 (about EUR 64,000);
- Mr Chebotarev - EUR 25,000;
- Mr Timakov - EUR 90,000;
- Mr Spiridonov - EUR 225,000;
- Mr Raspopov - EUR 100,000;
- Mr Zhilin - EUR 10,000;
- Mr Matveyev - EUR 4,000;
23. The Government submitted that the applicants’ claims in respect of non-pecuniary damage were excessive and unreasonable.
24. The Court considers that in the present case an award of just satisfaction must take account of the fact that the applicants did not have a fair trial because they were convicted of drug offences incited 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 the applicants appear to be excessive. Making its assessment on an equitable basis, the Court awards EUR 3,000 in respect of non-pecuniary damage to each of the applicants who claimed it plus any tax that may be chargeable on that amount.
B. Costs and expenses
25. Mr Chebotarev claimed EUR 3,800 in respect of costs and expenses incurred before the Court. He submitted an extract from the legal representation agreement between him and his representative. He did not submit any receipts. Mr Raspopov claimed RUB 55,000 (about EUR 700) and Ms Belyaeva claimed RUB 120,000 (about EUR 1,600) in respect of costs and expenses incurred before the domestic courts and before the Court. They submitted detailed receipts in support of their claim
26. The Government claimed that the applicants had failed to substantiate their claim in respect of costs and expenses.
27. According to the Court’s case-law, an applicant is entitled to 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 (see Khoroshenko v. Russia [GC], no. 41418/04, § 159, ECHR 2015).
28. Regard being had to its case-law and the documents in its possession, the Court will not make any award to Mr Chebotarev in respect of costs and expenses; it awards EUR 700 to Mr Raspopov and EUR 1,600 to Ms Belyaeva under this head.
C. Default interest
29. 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 under Article 6 § 1 of the Convention concerning the applicants’ conviction for criminal offences that were incited by the police admissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all thirteen applicants;
4. Holds
(a) that the respondent State is to pay the applicants, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, to Mr Pryakhin, Mr Chebotarev, Mr Timakov, Mr Spiridonov, Mr Raspopov, Mr Zhilin and Mr Matveyev, each, in respect of non-pecuniary damage;
(ii) EUR 700 (seven hundred euros) to Mr Raspopov and EUR 1,600 (one thousand six hundred euros) to Ms Belyayeva, plus any tax that may be chargeable to the applicants, 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 15 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Helena Jäderblom
Deputy Registrar President
APPENDIX