European Court of Human Rights

THIRD SECTION

CASE OF LIVADNIY AND OTHERS v. RUSSIA

(Applications nos. 12233/10 and 15 others -

see appended list)

JUDGMENT

STRASBOURG

26 March 2020

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

In the case of Livadniy 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 5 March 2020,

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 given notice of the applications.

THE FACTS

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

4.  The applicants complained that they had been unfairly convicted of drug offences following entrapment by State agents. In application no. 59534/10, the applicant also raised another complaint under Article 6 of the Convention.

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 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 ... 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. 23200/10 and 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, an issue similar to that in the present case (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).

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 applicants 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. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11.  In application no. 59534/10, the applicant submitted another complaint under Article 6 §§ 1 and 3 (d) which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). That complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Zadumov v. Russia, no. 2257/12, 12 December 2017.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  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.”

13.  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 (nos. 66215/12 and 4 others, § 28, 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).

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 that there has been a violation of the Convention as regards the other complaint raised under well-established case-law of the Court (see appended table);

5.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.

Done in English, and notified in writing on 26 March 2020, 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)