European Court of Human Rights

THIRD SECTION

CASE OF KUMITSKIY AND OTHERS v. RUSSIA

(Application no. 66215/12 and 4 other applications -

see appended list)

JUDGMENT

STRASBOURG

10 July 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kumitskiy and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,
Branko Lubarda,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Jolien Schukking,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 12 June 2018,

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

PROCEDURE

1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on the various dates indicated in the appended table.

2. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applications were communicated to the Russian Government ("the Government").

THE FACTS

4. The list of applicants and the relevant details of the applications are set out in the appended table.

5. The applicants complained that they had been unfairly convicted of drug offences following entrapment by State agents. In application no. 48523/15, the applicant also raised other complaints under the provisions of the Convention. As regards application no. 3436/15, on 31 October 2013 the Levokumskiy District Court of the Stavropol Region found the applicant guilty of three counts of an attempted drug sale "committed with the same intent" on 10 and 17 May and 19 June 2013, as well as declared him guilty of unlawful purchase and storage without an intent to sell of a large quantity of drugs, seized from him on 19 June 2013. The applicant was sentenced to ten years and a month of imprisonment. The conviction and sentence were upheld on appeal by the Stavropol Regional Court on 23 January 2014. In May 2015 the Deputy Prosecutor of the Stavropol Region asked the Presidium of the Regional Court to amend the conviction by excluding episodes of 17 May and 19 June 2013 "in view of the lack of a criminal conduct [in the applicant's actions]" and to uphold the conviction in respect of the episode on 10 May 2013. The Deputy Prosecutor argued, in particular, that the "operative experiment" in the course of which the applicant had sold drugs on 10 May 2013 had been properly authorised by the acting head of the district police department and had been recorded, and thus there was no need to perform subsequent "operative experiments" in the form of the test purchase on 17 May and 19 June 2013. On 30 June 2015 the Presidium of the Stavropol Regional Court accepted the Deputy Prosecutor's request for the revision of the final conviction by virtue of Article 401 of the Russian Criminal Code, annulled the conviction in respect of the two episodes of drug sale on 17 May and 19 June 2013, declared the applicant guilty of an attempted drug sale on 10 May 2013 and sentenced him to eight years and one month of imprisonment. The Presidium noted that having conducted "the operative experiment" on 10 May 2013 the police had already established and recorded the applicant's criminal activity. However, the police officers had not prevented the applicant's subsequent criminal activities and "had again, on 17 May and 19 June 2013 performed similar operative measures". The Presidium concluded that the applicant's conviction of episodes of 17 May and 19 June 2013 had therefore been based on unlawfully obtained evidence and thus should be voided. As regards the episode on 10 May 2013, it observed a video recording of the "test purchase" and noted that the applicant had talked about future drug sales. It then read out a statement by a witness M. who had testified that "the buyer had not incited anyone to sell drugs" when they were in the "company drinking alcohol". The Presidium concluded that there was no indication of the police entrapment on 10 May 2013.

DOMESTIC LAW AND PRACTICE

A. Review of final judgments by way of cassation procedure

6. Title 3, Section XIII of the Code of Criminal Procedure (here and after - the CCrP) of 2002 ("Procedure for review at second instance") (Часть 3, Раздел XIII "Производство в суде второй инстанции") stipulates in Article 390 § 2 that the decisions taken by the second-instance courts on appeal acquire binding force immediately.

7. On 29 December 2010 Federal Law no. 433-FZ, which entered into force on 1 January 2013, amended the Code by introducing a new Chapter 47.1 ("Cassation procedure") ("Производство в суде кассационной инстанции").

8. Article 401.2 ("Right to lodge a cassation appeal") of the Code prescribed a list of persons who were entitled to lodge a cassation appeal against any judicial act. Paragraph 3 of the same Article introduced a one-�year time-limit for lodging a cassation appeal against a judicial act which had become final and provided for a possibility to reset that time-�limit on certain grounds.

9. The new Article 401.6 provided safeguards against cassation revision of final judgments and decisions where revision could aggravate the situation of a convicted person, an acquitted person, or a person in respect of whom a criminal prosecution had been terminated. First, such revision was possible only within one year after these judgments or decisions had become final. Second, the cassation appeals were further restricted by the substantive criterion allowing a review only if a judgment breached the law "to an extent which distorted the essence and meaning of a judicial decision as an act of administration of justice".

10. On 19 December 2014 the State Duma adopted Federal Law no. 518-FZ, approved by the Council of the Federation on 25 December 2014, and signed by the President on 31 December 2014. The Law amended Article 401.2 of the Code by removing any time bars for lodging cassation appeals. The provisions of Article 401.6 remained in force.

B. Re-opening of criminal proceedings in view of new or newly discovered circumstances

11. The CCrP provides for a possibility to reopen proceedings in a criminal case when a violation of a Convention right has been found by this Court. The relevant provisions read as follows:

Article 413. Grounds for reopening of proceedings in a criminal case due to new or newly discovered circumstances

"1. Final judgments ... may be annulled and the proceedings in a criminal case reopened due to new or newly discovered circumstances ...

...

4. New circumstances are ...

...

2) A finding by the European Court of Human Rights of a violation of [Convention provisions] during consideration of a criminal case by a Russian court ..."

Article 415. Initiation of [revision] proceedings

"5. The Presidium of the Supreme Court of the Russian Federation revises ... [judgments] under circumstances listed in subparagraphs 1 and 2 of Article 413 of the Code upon application by the President of the Supreme Court of the Russian Federation within one month. Having considered the [above] application, the Presidium ... annuls or alters the judicial decisions in a criminal case in line with ... the judgment of the European Court of Human Rights ..."

Article 419. Proceedings in a criminal case after annulment of judicial decisions

"Judicial proceedings in a criminal case after annulment of judicial decisions due to new or newly discovered circumstances and the lodging of appeals against new judicial decisions follow the general rules [established by the Code]."

C. Russian Supreme Court's approach to cases concerning police entrapment

12. In 2016 the Russian Supreme Court published an extensive report summarising the legal positions of the European Court of Human Rights in cases where a violation of Article 6 § 1 of the Convention has been found in view of the applicants' conviction as a result of the police entrapment. It has since issued a number of similar interpretative summaries of the Court's case-law on this subject. In addition, relying on Article 415 § 5 of the Russian Code of Criminal Procedure, the Presidium of the Russian Supreme Court has regularly authorised the re-opening of criminal proceedings in view of the fact that the European Court of Human Rights found a violation of Article 6 § 1 of the Convention following the Russian courts' failure to effectively conduct the review of the defendants' arguments that the criminal offence had been committed as a result of the police entrapment (see for example the Presidium's decision no. 28-P17 issued on 12 April 2017 in response to the Court's decision in the case of Ulyanov and Others v. Russia [Committeee], nos. 22486/05 and 10 others, 9 February 2016).

THE LAW

I. JOINDER OF THE APPLICATIONS AND THE GOVERNMENT'S PRELIMINARY OBJECTION IN APPLICATION No. 3436/15

13. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

14. The Court further reiterates the Government's objection raised in respect of application no. 3436/15. In particular, the Government informed the Court that on 15 May 2015 the Deputy Prosecutor of the Stavropol Region lodged a cassation application with the Stavropol Regional Court seeking review of the trial and appellate judgments of 31 October 2013 and 23 January 2014, respectfully. On 30 June 2015, having relied on Article 401 of the Russian Code of Criminal Procedure regulating cassation proceedings (see paragraphs 8-10 above), the Presidium of the Stavropol Regional Court reviewed the applicant's conviction in respect of the two out of three counts of drug sale, those on 17 May and 19 June 2013, and having found that the conviction of those two episodes resulted from the entrapment by the police, acquitted the applicant of the charges related to those two episodes. At the same time the Presidium held that the episode on 10 May 2013 should be qualified as an attempt to sell drugs.

15. The Court observes that, in order to deprive an individual of his or her status as a "victim", the national authorities have to acknowledge, either expressly or in substance, and then afford redress for, the breach of the Convention (see Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 66-71, 2 November 2010 and Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-�III, p. 846, § 36).

16. On the facts of the case, the Court cannot agree with the Government's statement that the applicant's amended conviction was based solely on evidence which was not obtained as a result of police actions. In particular, there is nothing in the Presidium's decision to suggest that it has properly examined the issue of police incitement in the applicant's case in respect of the first episode of the attempted drug sale on 10 May 2013. The Presidium merely noted the absence of the need for the two test purchases on 17 May and 19 June 2013, as the episode on 10 May 2013 had already been properly recorded. It then looked into a vague statement by a witness and a video recording of the actual test purchase, which in its view did not contain any indication of the police entrapment. The Court observes that the Presidium did not verify the existence of information implicating the applicant in drug trafficking prior to the first contact between him and the buyer, acting upon the police instructions, on 10 May 2013, and did not assess the content of that information. It did not request relevant materials concerning the allegedly pre-existing "operational information" incriminating the applicant before the "operative experiment" on 10 May 2013 and did not hear a single witness about the early stages of police involvement when they had allegedly learned about the applicant's drug dealings. The Presidium made no attempts to check the allegations of the police and accepted their uncorroborated argument that they had had good reasons for suspecting the applicant.

17. In view of the above considerations, the Court dismisses the Government's preliminary objection in respect of application no. 3436/15. Accordingly, the applicant can still claim to be a "victim", within the meaning of Article 34 of the Convention, of the alleged violation of Article 6 of the Convention in respect of police incitement related to the first episode (see, for similar reasoning, Vanyan v. Russia, no. 53203/99, §§ 37-�39, 15 December 2005).

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

18. The applicants complained principally that they had been unfairly convicted of drug offences which they had been incited by State agents to commit and that their plea of entrapment had not been properly examined in the domestic proceedings. They relied on Article 6 § 1 of the Convention, which reads as follows:

Article 6 § 1

"In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."

19. The Court reiterates that absence in the national legal system of a clear and foreseeable procedure for authorising test purchases of drugs remains a structural problem which exposes applicants to an arbitrary action by the State agents and prevents the domestic courts from conducting an effective judicial review of their entrapment pleas (see Veselov and Others v. Russia, nos. 23200/10 and 2 others, § 126, 2 October 2012).

20. The Court has consistently found a violation of Article 6 § 1 of the Convention on account of the deficient existing procedure for authorisation and administration of test purchases of drugs in the respondent State and the domestic courts' failure to adequately address the applicant's plea of entrapment by taking necessary steps to uncover the truth and to eradicate the doubts as to whether the applicant had committed the offence as a result of incitement by an agent provocateur (see Veselov and Others, cited above, §§ 126-�28; Lagutin and Others v. Russia, nos. 6228/09 and 4 others, §§ 124-�25, 24 April 2014; Lebedev and Others v. Russia, nos. 2500/07 and 4 others, §§ 12-�16, 30 April 2015; and Yeremtsov and Others v. Russia, nos. 20696/06 and 4 others, §§ 17-�21, 27 November 2014).

21. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the criminal proceedings against the applicants were incompatible with a notion of a fair trial.

22. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.

III. REMAINING COMPLAINTS

23. In application no. 48523/15, the applicant also raised other complaints under various Articles of the Convention.

24. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

25. 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

26. The applicants claimed various amounts in respect of non-�pecuniary damage.

27. The Government contested the claims.

28. The Court reiterates that when an applicant has been convicted despite an infringement of his rights as 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 a retrial or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV). The Court, having regard to the fact that domestic law, in particular in Articles 413 and 415 of the Russian Code of Criminal Procedure (see paragraph 11 above), provides that criminal proceedings may be reopened if the Court finds a violation of the Convention, and given the position of the Russian Supreme Court in relation to the application by the national courts of the Convention principles in cases dealing with the police entrapment (see paragraph 12 above), considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants (see Zadumov v. Russia, no. 2257/12, §§ 80-81, 12 December 2017, and most recently, Hokkeling v. the Netherlands, no. 30749/12, § 68, 14 February 2017).

B. Costs and expenses

29. Mr Akhmadiyev (application no. 48523/15) claimed 1,000 euros (EUR) for compensation of his lawyer's fees. Mr Volchkov (application no. 3436/15) asked to award his representative compensation in accordance with the Court's case-law.

30. The Government submitted that any compensation should be awarded in accordance with the Court's established case-law.

31. The Court reiterates that 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 no documents in its possession in support of the applicants' claims and the above criteria, the Court rejects the applicants' claims as unsubstantiated.

FOR THESE REASONS, THE COURT,

1. Decides, unanimously, to join the applications and dismisses the Government's preliminary objection in relation to application no. 3436/15;

2. Declares, unanimously, the complaints concerning the applicants' convictions of criminal offences that were incited by the State agents admissible, and the remainder of application no. 48523/15 inadmissible;

3. Holds, unanimously, that these complaints disclose a breach of Article 6 § 1 of the Convention;

4. Holds, by five votes to two, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;

5. Dismisses, unanimously, the remainder of the applicants' claims for just satisfaction.

Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Pastor Vilanova and Elósegui is annexed to this judgment.

H.J.
F.A.

PARTLY DISSENTING OPINION OF JUDGE PASTOR VILANOVA JOINED BY JUDGE ELÓSEGUI

(Translation)

1. 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". Interpretation of this provision may attract criticism, particularly when the Court exempts the State from the duty to compensate the non-pecuniary damage sustained by the applicant(s) exclusively on the basis of the possibility that proceedings it has declared unfair may be reopened.

2. The image used by Judge Bonello in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999-�II) comes to mind: "Hoping to satisfy a victim of injustice with cunning forms of words is like trying to quench the thirst of a parched child with fine mantras". I have already had occasion to protest at a rigorous application of Article 41, which ultimately results in relieving the State of responsibility for its failings (see Paunović and Milivojević v. Serbia, no. 41683/06, 24 May 2016). I find the present case even more problematic in that the Court, while acknowledging the existence of a structural problem (see paragraph 19 of the judgment), takes no measures to counteract it. On the contrary, the victims are merely invited to seek the reopening of the criminal proceedings which the Court considers contrary to Article 6 § 1 of the Convention. As some of the applicants' judicial upsets began in 2011, they are hardly likely to want to return before the law courts.

3. It is therefore to be feared that their success before our Court amounts to a Pyrrhic victory, that is to say one with no real impact on the applicants' private sphere. I cannot but conclude that, in this scenario, the Convention loses all its effectiveness, whereas this is a guiding principle (see Paposhvili v. Belgium [GC], no. 41738/10, § 182, ECHR 2016) constantly reiterated by our Court since the landmark judgment Airey v. Ireland of 9 October 1979.

4. Beyond those preliminary observations, however, I find that the current application of Article 41 poses a problem, particularly in criminal matters such as this one. From a theoretical point of view, it is true that the Court should award nothing in just satisfaction where two criteria are satisfied concurrently: a finding of a violation and full compensation for (or total elimination of) the consequences at domestic level after the European ruling. At first sight, that approach appears entirely in keeping with the principle of subsidiarity. This would be true provided that the subsequent reopening of proceedings at domestic level were carried out in good faith (see Emre v. Switzerland (no. 2), no. 5056/10, 11 October 2011), completed within a reasonable time and fair compensation awarded for the damage where appropriate. In our case those guarantees have not been supplied by the State, which bears the burden of proof. It confines itself, in its observations, to indicating that a finding of a violation of the Convention would be sufficient because of the possibility of reopening the criminal proceedings. Nevertheless, despite the existence of that statutory basis (see paragraph 11), we have no information about its actual results. Furthermore, we do not know whether the applicants, in the event of an acquittal, will be able to sue the State on grounds of a malfunctioning of the public judicial service. And even if that were possible, the Grand Chamber has already ruled that it would appear excessive to require victims to institute fresh proceedings at domestic level in order to obtain just satisfaction. Such journeying through the courts has been deemed "hardly consistent with the effective protection of human rights" as it would lead "to a situation incompatible with the aim and object of the Convention" (see Jalloh v. Germany [GC], no. 54810/00, § 129, ECHR 2006-�IX).

5. Lastly, the majority depart, without giving reasons, from the well-�established case-law of the Court in this area which awards applicants compensation for non-pecuniary damage whilst at the same time considering that a new trial or reopening of criminal proceedings is an appropriate means of curing the violation found (see Baltiņš v. Latvia, no. 25282/07, 8 January 2013; Sepil v. Turkey, no. 17711/07, 12 November 2013; and Pătraşcu v. Romania, no. 7600/09, 14 February 2017).

6. In conclusion, I consider that the solution favoured by the majority not only conflicts with the purpose of Article 41, but also contradicts the Court's case-law. Accordingly, I have voted against point 4 of the operative provisions of the judgment. In my view, legal certainty requires a more consistent approach to this problem.

APPENDIX

List of applications raising complaints under Article 6 § 1 of the Convention

(entrapment by State agents)