European Court of Human Rights

 

 

 

THIRD SECTION

 

CASE OF MANELYUK AND OTHERS v. RUSSIA

(Applications nos. 40442/07 and 3 others - see appended list)

 

 

 

 

 

JUDGMENT

 

 

 

 

 

STRASBOURG

8 October 2019

 

 

 

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

In the case of Manelyuk and Others v. Russia,

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

          Georgios A. Serghides, President,
          Branko Lubarda,
          Erik Wennerström, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 17 September 2019,

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

PROCEDURE

1.  The case originated in four applications (nos. 40442/07, 6327/09, 21248/09 and 56679/11) 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 four 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, where applicable, as well as the information concerning the relevant domestic judgments, are set out in the Appendix.

2.  The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin and then by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3.  The applicants each alleged that they had been convicted of criminal offences following entrapment by the police in violation of Article 6 § 1 of the Convention.

4.  Mr Manelyuk (application 40442/07) also complained under Article 5 § 1 of the Convention about his detention on remand and under Article 6 §§ 1 and 3 (a), (b), (c) of the Convention about the alleged unfairness of the supervisory review proceedings in his case.

5.  Mr Konoplenko (application no. 6327/09) also complained under Article 5 § 1 (c) that his detention on remand had been unlawful and impermissibly long, in breach of Article 5 § 3 of the Convention. On 7 July 2015 the remainder of Mr Konoplenko’s application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

6.  The Government were informed by a letter of 1 July 2019 that the cases of Mr Manelyuk and Mr Konoplenko had been assigned to a Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7.  The applicants were each targeted in undercover operations conducted by the police in the form of an operative experiment under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal convictions for drug-dealing (applications 40442/07, 6327/09 and 56679/11) and bribe-taking (application 21248/09).

8.  The applicants disagreed with their convictions and argued that the police had incited them to commit criminal offences.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Undercover operations

9.  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)).

B.  Review of final judgments and reopening of criminal proceedings

10. For relevant provisions concerning review of final judgments and re‑opening of criminal proceedings in Russia, see Kumitskiy and Others v. Russia, nos. 66215/12 and 4 others, §§ 6-11, 10 July 2018).

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

11.  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 reopening 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, nos. 22486/05 and 10 others, 9 February 2016).

THE LAW

I. JOINDER OF THE APPLICATIONS

12.  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 5 OF THE CONVENTION IN RESPECT OF Mr MANELYUK AND MR KONOPLENKO

A.  Scope of Mr Manelyuk’s application (application no. 40442/07)

13.  The Court notes that Mr Manelyuk did not raise his complaint under Article 5 § 1 (c) of the Convention in his original application, and therefore it was not communicated to the Government and the Government did not comment on it. In his observations, Mr Manelyuk made new submissions regarding the alleged violation of his rights under Article 5 § 1 (c) of the Convention. However, he did not provide an explanation as to why he had failed to raise this complaint at an earlier stage, before communication of his case to the Government. Accordingly, the Court considers that the Article 5 complaint lodged by the applicant later in the proceedings does not constitute a mere elaboration on his original complaints to the Court, and therefore it is not appropriate to deal with this newly raised matter in the present case (see Rafig Aliyev v. Azerbaijan, no. 45875/06, §§ 69-70, 6 December 2011, with further references).

B.  The submissions of Mr Konoplenko (application no. 6327/09)

14.  Mr Konoplenko complained of a violation complained under Article 5 § 1 (c) that his detention on remand had been unlawful and impermissibly long, in breach of Article 5 § 3 of the Convention.

15.  On 20 December 2015 he submitted that he no longer wished to pursue his application in this part.

16.  The Government submitted that the Court should strike out the applicant’s complaint under this head.

17.  The Court observes that in accordance with Article 37 § 1 (a) of the Convention,

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application ...

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires ...”

18.  Noting the contents of the observations submitted by the applicant through his lawyer, the Court considers that it is no longer justified to continue the examination of Mr Konoplenko’s application in the part concerning his allegedly unlawful detention on remand and the length of that detention. The Court is also satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of Mr Konoplenko’s application in this part.

19.  Accordingly, the Court decides to strike out of its list of cases the complaint brought by Mr Konoplenko under Article 5 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION (AGENT PROVOCATEUR)

20.  The applicants complained that they had been unfairly convicted of criminal 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 ...”

21.  The Government contested that argument.

A.  Admissibility

22.  The Government submitted, in respect of Mr Manelyuk’s case, that that the domestic courts had reopened the criminal proceedings, requalified the applicant’s offence of two episodes of drug-dealing to one episode of an attempted purchase of drugs in large quantities, had quashed the applicant’s conviction of drug-dealing, reduced the term of imprisonment imposed on him by the first-instance court from seven to two years and acknowledged his right to partial rehabilitation.

23.  The Government further submitted that the domestic court had re‑examined Mr Nikolayev’s case, quashed his conviction of two episodes of sale of drugs and acknowledged his right to rehabilitation.

24.  In respect of Mr Krylov’s case they submitted that the prosecutor had requested the domestic courts to reopen the proceedings in his case and that the domestic court had refused the prosecutor’s request, having found that the applicant’s criminal intent was established independently from the actions of the police and that there had been no procedural deficiencies in the criminal proceedings against him.

25.  The Government’s observations were transmitted to Mr Manelyuk, Mr Nikolayev and Mr Krylov.

26.  Mr Manelyuk submitted that the issue of police entrapment had not been duly examined by the court in the supervisory proceedings. Mr Krylov did not submit any comments in this respect.

27.  Mr Nikolayev submitted observations in reply but they contained no relevant comments regarding the re-examination of his case by the domestic court. In the letter of 26 June 2019, Mr Nikolayev submitted unsolicited observations which were accepted and included in his case-file by the Court. In his new submissions, he informed the Court that the domestic courts awarded him compensation for the wrongful conviction of drug-related offence and for unlawful detention. He claimed that that the amount of compensation being only about 28 euros, he cannot be considered as having lost his status of a victim under Article 6 § 1.

28.  The Court reiterates that, in case of reopening of the domestic proceedings in the context of Russian cases, the assessment of victim status largely depends on the legal characterisation of a second set of proceedings as a separate case or, alternatively, as part of the same criminal case (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 47, 2 November 2010). The Court thus prefers to join the Government’s objection concerning victim status of Mr Manelyuk, Mr Nikolayev and Mr Krylov to the merits of their cases and to examine them together.

29.  In the case of Mr Manelyuk the Government also submitted that he had not exhausted domestic remedies because he had not complained about the alleged entrapment during the preliminary investigation and only brought his complaints during the examination of his case on the merits. The Court considers that this was not necessary in order to comply with the rule of exhaustion of domestic remedies. It reiterates that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful. When a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Veselov and Others v. Russia, cited above, § 73). In the circumstances of the present case, the Court considers that Mr Manelyuk has complied with the exhaustion requirement and that it has not been shown that a complaint to the prosecutor would have offered better prospects of success. Accordingly, it dismisses the Government’s objection as to non‑exhaustion of domestic remedies in the case of Mr Manelyuk.

30.  The Court notes that the complaints concerning the alleged police entrapment brought by the applicants 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. The must therefore be declared admissible.

B.  Merits

31.  The Government submitted that the undercover operations conducted in respect of Mr Manelyuk and Mr Konoplenko (applications nos. 40442/07 and 6327/09) 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. They also submitted that the applicants had had their cases reviewed by the domestic courts and that they had been provided with the necessary procedural safeguards in the course of the proceedings. In respect of Mr Krylov’s case (application no. 21248/09), the Government submitted that there had been no violation of Article 6 in respect of him, in addition to their submissions summarised in paragraph 23 above. The Government submitted no observations on the merits of Mr Nikolayev’s case (application no. 56679/11).

32.  Mr Manelyuk, Mr Konoplenko and Mr Nikolayev submitted in their observations that that the police had not had any reason to mount undercover operations and that the actions of the police had amounted to entrapment. Mr Krylov submitted no observations in respect of his complaint.

1.  The general principles relating to the reopening of the proceedings and the loss of victim status in agent provocateur cases

33. 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 further notes that a domestic decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of the victim status within the meaning of Article 34 of the Convention unless the national authorities have acknowledged and afforded redress for the breach of the Convention (see Sakhnovskiy, cited above, § 67). Furthermore, the reopening of proceedings by itself may not automatically be regarded as sufficient redress capable of depriving the applicant of his victim status. To ascertain whether or not the applicant retained his victim status the Court will consider the proceedings as a whole, including the proceedings which followed the reopening (ibid. § 83).

34.  In this respect, the Court has emphasised the role of domestic courts in cases concerning entrapment. Any arguable plea of incitement places the courts under an obligation to examine it in a manner compatible with the right to a fair hearing. The procedure to be followed must be adversarial, thorough, comprehensive and conclusive on the issue of entrapment, with the burden of proof on the prosecution to demonstrate that there was no incitement. The scope of the judicial review must include the reasons why the covert operation was mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicant was subjected. As regards Russia, in particular, the Court has found that the domestic courts had capacity to examine such pleas, in particular under the procedure for the exclusion of evidence (see Veselov and Others v. Russia, cited above, § 94 (with further references)).

35.  In respect of victim status of the applicants whose cases concerning entrapment have been reopened, the Court notes that it has considered the issue of the loss of victim status in other Russian cases before it. The Court held that the applicants, who had been convicted of drug-dealing and whose criminal cases were later re-examined by the domestic courts, had not ceased to be victims of the alleged violation of the Convention, owing to the fact that the re-examination of their criminal cases by the domestic courts had not been effective and in conformity with the requirements of Article 6 of the Convention and the case-law of the Court concerning the standard of such review (see Ulyanov and Others v. Russia, nos. 22486/05 and ten others, 9 February 2016; Lebedev and Others v. Russia, nos. 2500/07 and four others, §§ 12-16, 30 April 2015; and Yeremtsov and Others v. Russia, nos. 20696/06 and four others, §§ 17-21, 27 November 2014).

36.  In particular, in the case of Yeremtsov and Others (cited above) the Court found that during the re-examination of the applicants’ cases, the domestic courts had simply reiterated the reasoning of the first-instance court in relation to the first incident of sale of drugs and had held that only the remaining incidents involving the sale of drugs had amounted to entrapment because they had not pursued a legitimate goal, such as the detection and prevention of crime. The domestic courts had not examined the main issue raised in the applicants’ complaints, namely, that the police had not had a valid reason to mount any of the undercover operations and that they had wrongfully incited the applicants to sell drugs. They had not requested any evidence concerning the substance of the incriminating information from the police operation and had simply accepted the uncorroborated statements of police officers to that effect (ibid. §§ 18‑19).

2.  Application of the above principles to the cases of Mr Manelyuk, Mr Nikolayev and Mr Krylov

37.  The Court observes that the Russian authorities reopened the domestic proceedings in the cases of Mr Manelyuk and Mr Nikolayev and sought to reopen them in the case of Mr Krylov, after their applications had been communicated to the Government by the Court.

(a)             The case of Mr Manelyuk (application 40442/07)

38.  Turning to the facts of Mr Manelyuk’s application, the Court notes that the domestic court conducted the supervisory review of the applicant’s criminal case at the request of the prosecutor. The court found that the first‑instance court established correctly that the applicant was involved in illegal handling of drugs because he had himself admitted that he had previously bought drugs for his own consumption. However, it also found that the charges of sale of drugs in respect of the applicant were not substantiated by evidence. In particular, the court held:

“... Despite measures taken by this court, it was not possible to secure attendance of [S., a police informant] and examine him at the hearing. Nevertheless, the transcripts of the telephone conversations and other evidence examined by the court show that [S.] routinely took part in the undercover operations. There is no material in the case-file that would refute [the applicant’s arguments concerning entrapment by the police]. The police officer Ch. [who was in charge of the undercover operation] did not deny at the hearing that [S.] was a friend of his.

In these circumstances, it cannot be said that [the applicant] had the pre-existing criminal intent to sell drugs ... he was going to purchase the drugs ... also for his personal use at the request of [S.] and with the money that [S.] provided to him. The court qualifies [the applicant’s] actions in relation to [the first episode of drug- dealing] as an attempted acquisition of drugs in large quantities ...The court quashes charges [against the applicant] in relation to the [second episode of drug-dealing] because ... [these actions qualify] as unlawful acquisition of drugs in small quantities and as such, they do not constitute a criminal offence.

[The court also holds inadmissible] evidence obtained during the search of the applicant’s room [owing to certain procedural deficiencies].

Having regard to existing doubts [about the applicant’s guilt] which should be interpreted in [his] favour, [the court quashes the applicant’s] conviction [as to the second episode of drug- dealing] ... and requalifies his actions [in relation to the first episode of drug-dealing] from sale of drugs to an attempted acquisition of drugs in large quantities ... imposes a sentence of two-year term of imprisonment [on the applicant] ... orders to release [the applicant] from detention because he has already served his sentence and upholds [the applicant’s] right to partial rehabilitation ...”.

39.  The Court notes that, unlike in the cases of Yeremtsov and Others and Lebedev and Others (cited above), the domestic court that reopened the proceedings in the case of Mr Manelyuk appears to have duly examined the applicant’s plea of entrapment, the extent of police involvement in the offence and the relevant materials of the case concerning the undercover operation. It held inadmissible evidence which was obtained during the undercover operation and which was used to convict the applicant of sale of drugs. On the basis of its analysis, the court then found grounds for the requalification, in the applicant’s favour, of his offence in respect of the first episode of sale of drugs and quashed his conviction in relation to the second episode. In respect of the requalification of the applicant’s offence to a lesser one, the Court agrees with the findings of the domestic court and also notes from the case material before it that the applicant admitted that he had been routinely acquiring drugs for personal use, including on the day of the undercover operation. The Court also notes that in his observations the applicant did not claim that he had been incited to buy drugs by the police. Lastly, the domestic court reduced significantly the original term of imprisonment of seven years imposed on the applicant in the first set of proceedings and established the applicant’s right to partial rehabilitation (see paragraphs 22 and 38 above). Accordingly, the Court considers that in the particular circumstances of Mr Manelyuk’s case, its re-examination in general was in accordance with the standards of judicial review developed in the Court’s case-law concerning police entrapment and in conformity with the requirements of Article 6 of the Convention.

(b)             The case of Mr Nikolayev (56679/11)

40.  The domestic court that re-examined Mr Nikolayev’s case in the first instance held, in relevant part:

“...The prosecutor requested to withdraw charges of two episodes of sale of drugs in respect of the applicant.

In support of her request the prosecutor submitted that there was no evidence that that the applicant had a pre-disposition to sell drugs in large quantiles ... [he was incited to do so] by [D.] who collaborated with [the police officer Zh.] There is no evidence that [the applicant] would have committed this crime without the involvement of the police ...

In the prosecutor’s opinion, [the applicant] consistently at all stages of the proceedings claimed that he had been incited [to sell drugs] ...

[The applicant’s] allegations are confirmed by [D.] who testified at the hearing that she had convinced [the applicant to sell drugs] because [Zh.] threatened to bring drug-related charges against her ...

The instigation of crime by [Zh.] in respect of [the applicant] is confirmed by the judgment ... by which [Zh.] was found guilty of [abuse of power and sale of drugs] in connection with charges brought against [the applicant]...The court found that the [Zh.] subjected [D.] to threats and forced her ... to acquire drugs under his control ... which she bought from [the applicant].

Moreover, ... it was established that [another police officer] forged surveillance documents in respect of [the applicant] and gave false testimony during the preliminary investigation and judicial examination [of the applicant’s case] ...

In the light of the above, the prosecutor wishes to withdraw [charges against the applicant] entirely ...

The court grants the request of the prosecutor ... as it is duly substantiated and based on the assessment of evidence presented at the hearing ...

The court quashes [the applicant’s] conviction ... relieves [him] of his obligation not to leave his place of residence [the initial preventive measure] ... and upholds his right to rehabilitation ...”.

41.  Furthermore, the Court notes the information submitted by Mr Nikolayev on 26 June 2019 concerning allegedly inadequate amount of compensation awarded to him by the domestic courts (see paragraph 27 above). The Court reiterates, in that respect, that an applicant’s “victim” status may depend on the level of compensation awarded at domestic level, where appropriate, or at least on the possibility of seeking and obtaining compensation for the damage sustained, having regard to the facts about which he or she complains before the Court (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 262, ECHR 2012 (extracts)). In the context of complaints under the criminal limb of Article 6 the Court held that the most appropriate form of redress would, in principle, be a retrial or the reopening of the proceedings (see paragraph 33 above).

42.  The Court notes that not only the proceedings in Mr Nikolayev’s case were reopened and his case fully re-examined but the domestic court also quashed his criminal conviction and established his right to rehabilitation and Mr Nikolayev was able to seek and obtain compensation for the damage sustained. Furthermore, having examined the text of the domestic court’s judgment, the Court considers that the applicant’s plea of incitement was adequately addressed during the retrial and the domestic court took the necessary steps to uncover the truth and to eradicate the doubts as to whether or not the applicant had committed the offence as a result of incitement by an agent provocateur. The Court therefore, concludes that the redress that Mr Nikolayev obtained in respect of his grievance was appropriate and in accordance with the Court’s case-law on the matter.

43.  Having regard to the Government’s submissions and its own findings in paragraphs 39 and 42 above, the Court therefore accepts the Government’s objection that Mr Manelyuk and Mr Nikolayev have lost their victim status in respect of their complaint concerning the entrapment by the police and also finds that there has been no violation of Article 6 §§ 1 of the Convention in respect of them, owing to the subsequent effective examination of that complaint by the domestic courts.

(c)            The case of Mr Krylov (application no. 21248/09)

44.  As regards Mr Krylov, the Court notes that the prosecutor requested to reopen the proceedings in his case and quash the applicant’s conviction of bribe-taking because, in the prosecutor’s opinion, the police informant had instigated the applicant to commit crime and the applicant had not had the pre-existing criminal intent. The domestic court refused to reopen the case but nevertheless examined the arguments of the prosecutor and held, in relevant part:

“... [the police officers] participating in the undercover operation testified that the operation was launched to verify the incriminating information that had been received in respect of the [corrupt] road police officers, including [the applicant] ... Witness [Kh.] provided the detailed account of his paying a bribe to [the applicant]. The judgment also refers to other incriminating evidence implicating the applicant in bribe-taking ...

The arguments [by the prosecutor] about the absence of information concerning previous criminal behaviour [of the applicant] are not convincing... [The applicant] agreed to take the bribe ... and did not object and the persons who took part in the undercover operation acted in an essentially passive manner and did not have to overcome his resistance to take the money. [The prosecutor’s] argument that the applicant was incited to commit a criminal offence due to the instigation [by the police officers] cannot be considered as a ground to quash his conviction ...”.

45.  The Court observes from the above that the matter of entrapment received only marginal attention from the domestic court. It, in essence, refused to enter into the merits of the plea of entrapment, in particular when the domestic court rejected the prosecutor’s argument concerning lack of evidence of previous involvement of the applicant in criminal activity, having focused its analysis only on the applicant’s actions during the undercover operation and having dismissed the prosecutor’s arguments in a rather summary manner. In these circumstances, the Court considers that the issue of incitement was not adequately addressed by the domestic court and that the judicial review of Mr Krylov’s case fell short of the standards developed in the Court’s case-law in the light of Article 6 of the Convention. The Court, therefore, finds that Mr Krylov remains a victim of the alleged violation of Article 6 of the Convention.

46.  The Court further 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 may prevent 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 case of Mr Krylov is 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; Yeremtsov and Others; Ulyanov and Others, all cited above).

47.  Accordingly, the Court finds no reason to depart from its earlier findings on the matter and holds that the criminal proceedings against Mr Krylov 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 § 1 of the Convention in respect of Mr Krylov.

(d)           The case of Mr Konoplenko (application no. 6327/09)

48.  The Court notes that the case of Mr Konoplenko, likewise, is identical to other Russian cases on entrapment, all cited above.

49.  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 merits of Mr Konoplenko’s complaint. Having regard to its well-established case-law on the subject, the Court considers that in the instant case the criminal proceedings against the applicant were incompatible with a notion of a fair trial.

50.  There has accordingly been a violation of Article 6 § 1 of the Convention in respect of Mr Konoplenko.

IV. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (A), (B), (C) OF THE CONVENTION IN REPSECT OF MR MANELYUK

51.  Mr Manelyuk (application no. 40442/07) further complained under Article 6 §§ 1 and 3 (a), (b), (c) of the Convention that the supervisory review proceedings were not fair because the court requalified the original charges against him and he did not have sufficient time to prepare his defence in the absence of a legal counsel. The relevant provisions of Article 6 provide:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

...

3.  Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...”

52.  The Government contested that argument. In particular, they submitted that on 15 February 2011 the prosecutor submitted a request to reopen the criminal proceedings in respect of the applicant, to requalify charges against him and mitigate his sentence. On 17 February 2011 the Supreme Court of the Republic of Tatarstan granted the prosecutor’s request and a copy its ruling, indicating the date and the time of the hearing, was sent to the applicant and his lawyer on the same day, together with a copy of the prosecutor’s request. The court hearing was scheduled for 2 March 2011. The legal counsel who represented the applicant in the first set of the proceedings was duly informed of the date and time of that hearing. The applicant did not request the domestic court to appoint another legal counsel for him. According to the Government, there were no grounds for mandatory participation of a legal counsel in the applicant’s case. The applicant took part in the hearing via video-link and had opportunity to express his position before the domestic court. He supported the request brought by the prosecutor and did not file any motions or complaints in the course of the hearing.

53.  The applicant submitted no observations in respect of his complaints under Article 6 §§ 1 and 3 (a), (b) of the Convention. He did not claim that he received belatedly the documents sent to him by the court. In respect of his complaint under Article 6 §§ 1 and 3 (c), the applicant maintained that even though he had not requested the court to appoint a lawyer and to postpone the hearing, he had not waived his right to legal assistance.

54.  Having considered the Government’s observations and having examined all the material submitted to it and given the fact that the applicant has not put forward any fact or argument capable of persuading the Court to reach a different conclusion in the present case, the Court finds that the applicant’s complaints under Article 6 §§ 1 and 3 (a), (b) are manifestly ill-founded and must be rejected in accordance with Article 35 §§ (a) and 4 of the Convention.

55.  In respect of his complaint under Article 6 §§ 1 and 3 (c) of the Convention, the Court notes that the applicant worded his complaint in rather general terms and made no specific submissions in his observations as to how exactly, in his opinion, the absence of lawyer in the supervisory review proceedings had adversely affected his rights or the outcome of the proceedings. In these circumstances, the Court finds that the applicant’s complaint is not sufficiently substantiated and does not merit further examination. Accordingly, it follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (D) OF THE CONVENTION IN RESPECT OF MR MANELYUK

56.  Mr Manelyuk (application no. 40442/07) also complained that he had not been able to examine a witness against him. In particular, Mr Manelyuk claimed that S., who bought drugs from him at the request of the police, had not been questioned in court. He relied on Article 6 §§ 1 and 3 (d) of the Convention.

57.  The Government submitted that the police agent who was in charge of the undercover operation and other witnesses had been questioned in court. The made no specific submission in respect of S.

58.  The Court has previously held that the right to examine or have examined witnesses whose testimony may be relevant for the evaluation of an entrapment plea is one of the guarantees against the abuse of powers in undercover operations (see Lagutin and Others, § 101, and Bannikova, § 65, both cited above).

59.  However, having regard to the facts of the case, the submissions of the parties, the findings of the domestic court in respect of Mr Manelyuk’s complaint about the police entrapment and its own findings under Article 6 § 1 of the Convention, the Court considers that it has examined the main legal question raised by Mr Manelyuk in his application and that there is no need to give a separate ruling on this complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

60.  Lastly, Mr Manelyuk, Mr Krylov and Mr Nikolayev (in his submissions of 26 June 2019) raised additional complaints with reference to various Articles of the Convention. The Court has examined these complaints as submitted by the applicants. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of their applications is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

61.  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

62. Mr Konoplenko claimed 50,000 rubles ((RUB), about 700 euros (EUR)) in respect of pecuniary damage and EUR 5,000,000 in respect of non-pecuniary damage. Mr Krylov submitted no claims for just satisfaction.

63.  The Government submitted that that award, if made, should be in compliance with the Court’s established case-law.

64.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

65.  In respect of Mr Konoplenko’s claim for non-pecuniary damage, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see Kumitskiy and Others, cited above, § 28).

B.     Costs and expenses

66.  Mr Konoplenko also claimed RUB 226,000 (about EUR 3,200 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

67.  The Government made no submission in respect of this claim.

68.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicant the sum of EUR 3,200 covering costs under all heads.

C.    Default interest

69.  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.      Decides not to examine the complaint under Article 5 of the Convention in respect of Mr Manelyuk;

3.      Decides to strike out Mr Konoplenko’s complaint under Article 5 of the Convention;

4.      Decides to join to the merits the Government’s objection concerning the victim status of Mr Manelyuk, Mr Krylov and Mr Nikolayev;

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

6.      Holds that Mr Manelyuk and Mr Nikolayev have lost their victim status in respect of their “agent provocateur” complaint under Article 6 § 1 and that there has been no violation in respect of them under this head;

7.      Holds that Mr Krylov maintains his status of “victim” for the purposes of Article 34 of the Convention in respect of his “agent provocateur” complaint under Article 6 § 1 and rejects the Government’s objection in this respect;

8.      Holds that there has been a violation of Article 6 § 1 of the Convention in respect of Mr Krylov;

9.      Holds that there has been a violation of Article 6 § 1 of the Convention in respect of Mr Konoplenko;

10.  Holds inadmissible Mr Manelyuk’s complaints brought by him under under Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention;

11.  Holds that it is not necessary to examine the admissibility and merits of Mr Manelyuk’s complaint under Article 6 §§ 1 and 3 (d) of the Convention;

12.  Holds the remainder of the applications inadmissible;

13.  Holds

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

(b)  that the respondent State is to pay Mr Konoplenko, within three months the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)         EUR 3,200 (three thousand two hundred euros), plus any tax that may be chargeable to Mr Konoplenko, in respect of costs and expenses;

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

14.  Dismisses the remainder of Mr Konoplenko’s claim for just satisfaction.

Done in English, and notified in writing on 8 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                              Georgios A. Serghides
       Registrar                                                                              President

 

 

Appendix