European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

CASE OF KHASANOV AND OTHERS v. RUSSIA

( Application s no s . 28634/11and 5 others -

see appended list )

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

27 June 2019

 

 

 

 

 

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

 

In the case of Khasanov and Others v. Russia ,

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

Alena Poláčková , President,
Dmitry Dedov ,
Gilberto Felici , judges,
and Liv Tigerstedt , Acting Deputy Section Registrar ,

Having deliberated in private on 6 June 2019 ,

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.     Notice of the application s was given to the Russian Government ("the Government").

THE FACTS

3.     The list of applicant s and the relevant details of the applications are set out in the appended table.

4.     The applicant s complained that they had been unfairly convicted of drug offences following entrapment by State agents .

THE LAW

I.     JOINDER OF THE APPLICATIONS

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

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

6.     The applicant s complained 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:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

7.     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.   23200/10and   2   others, §   126, 2   October 2012).

8.     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.   6228/09and   4   others, §§   124 - 25, 24   April 2014; Lebedev and   Others v.   Russia , nos.   2500/07and   4   others, §§   12 - 16, 30   April 2015; and Yeremtsov and   Others v.   Russia , nos.   20696/06and   4   others, §§   17 - 21, 27   November 2014).

9.     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 applicant s were incompatible with a notion of a fair trial.

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

III .     APPLICATION OF ARTICLE   41 OF THE CONVENTION

11.     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."

12.     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). Given the Court ' s findings in Kumitskiy and Others v. Russia (n os. 66215/12and 4   others, § 17, 10 July 2018), the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants in the present cases (see also Zadumov v. Russia, no. 2257/12 , §§   80-81, 12 December 2017) .

13.     The Court further 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 the above criteria, the Court considers reasonable to award the applicants in application no. 20574/14, jointly, the sum indicated in the appended table . As for the remaining applications, the Court notes that the applicants have submitted no documents to support their claims. It therefore rejects these claims as unsubstantiated.

14.     The Court finally 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 applications admissible ;

 

3.     Holds that these applications disclose a breach of Article   6 § 1 of the Convention concerning entrapment by State agents ;

 

4.     Holds

(a)     that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;

(b) that the respondent State is to pay the applicant s in application no. 20574/14 , jointly, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(c)     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 ' claims for just satisfaction .

Done in English, and notified in writing on 27 June 2019 , pursuant to Rule   77   §§   2 and   3 of the Rules of Court.

Liv Tigerstedt Alena Poláčková

Acting Deputy Registrar President

 

APPENDIX

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

( entrapment by State agents )

 

[i] .     Plus any tax that may be chargeable to the applicants.