European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

CASE OF AKULIN AND OTHERS v. RUSSIA

 

(Applications nos. 14313/07, 28826/07, 34975/07, 5638/09, 29575/09, 66628/09, 75503/10, 4301/11 and 9924/11)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

22 March 2016

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




In the case of Akulin 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 1 March 2016,

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

PROCEDURE

1.  The case originated in nine applications (nos. 14313/07, 28826/07, 34975/07, 5638/09, 29575/09, 66628/09, 75503/10, 4301/11 and 9924/11) 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 nine Russian nationals, (“the applicants”). 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 17 June 2014 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 10 October 2014 the Government submitted observations in the cases of Mr Sheguta, Mr Baranov and Mr Vasilyev (application nos. 28826/07, 34975/07 and 4301/11).

6.  On 6 April 2015 Mr Ismaylov (application no. 75503/10) died. In a letter of 21 April 2015 the applicant’s wife, Ms Shirina, expressed her wish to pursue the application on her late husband’s behalf.

7.  By a letter of 24 June 2015 the Government disagreed, stating that the proceedings before the Court in respect of Mr Ismaylov should be discontinued because of his death, and that his wife did not have a sufficient legitimate interest to justify further examination of the case.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

8.  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.

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

II.  RELEVANT DOMESTIC LAW

10.  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.  LOCUS STANDI OF MS SHIRINA (application no. 75503/10)

11.  The Court takes note of the death of Mr Ismaylov and of the wish of his widow to pursue the proceedings he had initiated.

12.  The Court reiterates that where an applicant dies during the examination of a case, his or her heirs may in principle pursue the application on his or her behalf (see Ječius v. Lithuania, no. 34578/97, § 41, ECHR 2000-IX). It further reiterates that in a number of cases in which applicants have died in the course of the proceedings, it has taken into account the statements of their heirs or close family members expressing their wish to pursue the proceedings before the Court (see Latif Fuat Öztürk v. Turkey, no. 54673/00, § 27, 2 February 2006, and Hanbayat v. Turkey, no. 18378/02, § 20, 17 July 2007). In the present case, the Court considers that apart from explicitly expressing her wish to do so, the applicant’s widow has a sufficient legitimate interest in pursuing the proceedings on his behalf, given that the complaints brought by Mr Ismaylov concern the defects identified previously by the Court in Russian law and practice on undercover operations (see Veselov and Others, §§ 126-27, cited above) and as such, they transcend the individual interest of the applicants’ cases.

13.  The Court therefore considers that Mr Ismaylov’s widow has standing to continue the present proceedings in the applicant’s stead. Accordingly, it rejects the Government’s objection that the proceedings should be discontinued.

II.  JOINDER OF THE APPLICATIONS

14.  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.

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

15.  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

16.  The Government claimed that Mr Sheguta’s, Mr Baranov’s and Mr Vasilyev’s (application nos. 28826/07, 34975/07 and 4301/11) agent provocateur complaints are manifestly ill-founded and also that Mr Vasilyev had not made an entrapment plea before the domestic courts.

17.  The Government’s observations were transmitted to the above applicants for information. They did not submit any comments.

18.  Having considered the Government’s arguments and the documents before it, the Court notes that Mr Sheguta, Mr Baranov and Mr Vasilyev 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 10 above and 21 below) and that Mr Vasilyev had brought sufficiently clear and specific allegations of police entrapment before the domestic courts. Accordingly, the Court dismisses the Government’s objections as to the admissibility of Mr Sheguta’s, Mr Baranov’s and Mr Vasilyev’s agent provocateur complaints and finds them admissible.

19.  The Court also finds that the complaints concerning entrapment by the police brought by the other six 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

20.  The Government submitted no observations on the merits of the cases.

21.  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).

22.  The Court finds no reason to depart from its earlier findings on the matter and holds that the criminal proceedings against all nine applicants 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 nine applicants.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  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

24.  The applicants claimed the following amounts in respect of pecuniary damage:

-        Mr Akulin - 955,645 Russian roubles ((RUB) about 13,000 euros (EUR));

-        Mr Sheguta - EUR 54,784;

-        Mr Baranov - EUR 60,500;

-        Mr Glazunov - RUB 3,522,372 (about EUR 47,000);

-        Mr Ismaylov - EUR 11,884;

-        Mr Kosolapov - RUB 1,629,287 (about EUR 22,000).

25.  Mr Vasilyev did not submit any claim for just satisfaction.

26.  The Government submitted that the applicants had failed to substantiate their claims in respect of pecuniary damage.

27.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims.

2.  Non-pecuniary damage

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

-        Mr Akulin - EUR 80,000;

-        Mr Sheguta - EUR 100,000;

-        Mr Baranov - EUR 50,000;

-        Mr Pecherskikh - EUR 100,000;

-        Mr Zheludkov - EUR 5,000;

-        Mr Glazunov - EUR 2,000,000;

-        Mr Ismaylov - EUR 50,000;

-        Mr Kosolapov - 450,000 RUB (about EUR 6,000).

29.  The Government submitted that the applicants’ claims in respect of non-pecuniary damage were unsubstantiated and excessive.

30.  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, except Mr Vasilyev, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

1. Mr Akulin, Mr Glazunov, Mr Ismaylov and Mr Kosolapov (applications nos. 14313/07, 66628/09, 75503/10 and 9924/11)

31.  Mr Akulin claimed RUB 15,035.86 (about EUR 200), Mr Glazunov claimed EUR 9,600, Mr Ismaylov claimed EUR 6,000 and Mr Kosolapov claimed RUB 175,000 (about EUR 2,400) in legal costs and expenses. They submitted legal representation agreements and receipts in support of their claim.

32.   The Government submitted that the applicants had failed to substantiate their claim in respect of costs and expenses.

33.   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).

34. Regard being had to its case-law and the documents in its possession, the Court awards EUR 200 to Mr Akulin and EUR 1,000 each to Mr Glazunov, Mr Ismaylov and Mr Kosolapov in respect of costs and expenses.

2.  Mr Sheguta (application no. 28826/07)

35.  Mr Sheguta claimed EUR 1,405 in legal costs and expenses. However, the receipts he submitted confirmed only EUR 55 of the amount claimed.

36.  The Government submitted that the applicant had failed to substantiate his claim in respect of costs and expenses.

37.  Regard being had to its case-law and the documents in its possession, the Court awards EUR 55 to Mr Sheguta in respect of costs and expenses.

3.  Mr Baranov (application no. 34975/07)

38.  Mr Baranov claimed EUR 15,000 in legal costs and expenses. He submitted no receipts in support of his claim.

39.  The Government submitted that the applicant had failed to substantiate his claim in respect of costs and expenses.

40.  In the present case, regard being had to its case-law and the documents in its possession, the Court will not make any award to Mr Baranov under this head.

4.  Mr Pecherskikh, Mr Zheludkov and Mr Vasilyev (applications nos. 5638/09, 29575/09 and 4301/11)

41.  Mr Pecherskikh, Mr Zheludkov and Mr Vasilyev did not claim any legal costs and expenses.

C.  Default interest

42.  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.  Holds that Ms Shirina has standing to pursue the proceedings in Mr Ismaylov’s stead;

 

2.  Decides to join the applications;

 

3.  Declares the complaints under Article 6 § 1 of the Convention concerning the applicants’ conviction for criminal offences that were incited by the police admissible;

 

4.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all the applicants;

 

5.  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) to each of the applicants, except Mr Vasilyev, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 200 (two hundred euros) to Mr Akulin, EUR 1,000 (one thousand euros) each to Mr Glazunov, Mr Ismaylov and Mr Kosolapov and EUR 55 (fifty-five euros) to Mr Sheguta in respect of costs and expenses, plus any tax that may be chargeable to the applicants on those amounts.

 (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

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

Done in English, and notified in writing on 22 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Marialena Tsirli                                                                  Helena Jäderblom
Deputy Registrar                                                                       President

 

 

 




 

APPENDIX

 

No.	Application no.	Dates of introduction and communication	Applicant’s name, date of birth and place of residence	Represented by	Final judgment
1.	14313/07   Akulin v. Russia	01/03/2007   17/06/2014	Mr Sergey Vitalyevich AKULIN 25/02/1979 Ivanovo		1. The Ivanovo District Court of the Ivanovo Region, 9 November 2006;   2. The Ivanovo Regional Court, 14 December 2006.
2.	28826/07   Sheguta v. Russia	18/05/2007   17/06/2014	Mr Sergey Nikolayevich SHEGUTA 29/07/1971 Syktyvkar	Ms Lyubov Nikolayevna SHEGUTA	1. The Syktyvkar Town Court of the Komi Region, 26 October 2006;   2. The Supreme Court of the Republic of Komi, 5 December 2006.
3.	34975/07   Baranov v. Russia	06/07/2007   17/06/2014	Mr Valeriy Vladimirovich BARANOV 17/12/1982 Ivanovo		1. The Frunzenskiy District Court, 21 February 2007;   2. The Ivanovo Regional Court, 3 April 2007.
4.	5638/09   Pecherskikh v.  Russia	11/09/2008   17/06/2014	Mr Valeriy Nikolayevich PECHERSKIKH 10/10/1969 Ulyanovsk		1. The Zasiyazhskiy District Court of Ulyanovsk, 30 January 2008;   2. The Ulyanovsk Regional Court, 12 March 2008.
5.	29575/09   Zheldukov v. Russia	08/04/2009   17/06/2014	Mr Sergey Vyacheslavovich ZHELUDKOV 31/10/1978 Kudymkar, Perm Region		1.The Kudimkarskiy Town Court of the Perm Region, 17 November 2008;   2. The Perm Regional Court, 23 December 2008.
6.	66628/09   Glazunov v. Russia	25/11/2009   17/06/2014	Mr Igor Yuryevich GLAZUNOV 24/12/1984 Ussuriysk, Primorsk Region		1. The Ussuriyskiy Town Court of the Primorsk Region, 19 March 2009;   2. The Primorsk Regional Court, 26 May 2009.
7.	75503/10   Ismaylov v. Russia	29/11/2010   17/06/2014	Mr Konstantin Fuadovich ISMAYLOV 29/07/1973 The applicant died on 6 April 2015.	Ms Yuliya Vilenovna SHIRINA	1. The Leningradsliy District Court of Kaliningrad, 5 May 2010.   2. The Kaliningrad Regional Court, 13 July 2010.
8.	4301/11   Vasilyev v. Russia	30/12/2010   17/06/2014	Mr Valeriy Vyacheslavovich VASILYEV 08/01/1984 Astrakhan		1. The Narimanovskiy District Court of Astrakhan, 6 October 2010;   2. The Astrakhan Regional Court, 2 December 2010.
9.	9924/11   Kosolapov v. Russia	18/01/2011   17/06/2014	Mr Denis Valeryevich KOSOLAPOV 21/05/1979 Astrakhan		1. The Sovetskiy District Court of Astrakhan, 12 October 2010;   2. The Astrakhan Regional Court, 2 December 2010.