Information Note on the Court’s case-law No. 135
November 2010
Bannikova v. Russia - 18757/06
Judgment 4.11.2010 [Section I]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Undercover police operation resulting in conviction for drug-trafficking offences: no violation
Facts – In her application to the European Court, the applicant complained of police entrapment that had resulted in her being convicted of drug-trafficking offences. Between 23 and 27 January 2005 the Federal Security Service (“FSB”) recorded a series of telephone conversations between the applicant and a fellow suspect S., who brought the applicant a supply of cannabis on 28 January 2005. The same day the acting regional chief of the FSB authorised an undercover operation in the form of a test purchase, which was carried out the next day by an undercover agent, B, who purported to be a buyer. At her trial, the applicant submitted that she had been harassed and threatened by one Vladimir into selling the cannabis. She was convicted of selling cannabis to B. and of conspiracy and sentenced to four years’ imprisonment. Her appeal was dismissed after the regional court rejected her argument of incitement by State agents on the grounds that her participation in the drug sale on 29 January 2005 had been established on the basis of multiple items of evidence and was not denied by her.
Law – Article 6 § 1: The first question to be examined by the Court when confronted with a plea of entrapment was whether the State agents carrying out the undercover activity had remained within the limits of “essentially passive” behaviour or gone beyond them, acting as agents provocateurs. In addressing that question, the Court would apply the substantive test of incitement, which entailed examining whether there were objective suspicions that the applicant had been involved in or was predisposed to criminal activity, whether the undercover agents had merely “joined” the criminal acts or had instigated them, and whether they had subjected the applicant to pressure to commit the offence. Unless the applicant’s allegations were wholly improbable, it was for the authorities to show that there had been no incitement. The Court found it beyond doubt that undercover agent B. had merely “joined in” the criminal acts rather than instigated them as, by the time of B.’s first encounter with the applicant on 29 January 2005, the FSB was already in possession of the recordings of her conversations with S. concerning the drug deal. However, it could not determine with certainty whether Vladimir’s alleged involvement was also part of the undercover operation, as the applicant seemed to be alleging, and if so, whether he had exerted pressure on her to commit the offence.
Where, as here, the substantive test was inconclusive, the Court had to go on to examine whether the applicant had been able to raise the issue of incitement effectively in the domestic proceedings and how the domestic court had dealt with that plea. In that connection, it reiterated that, for a plea of incitement to be effectively addressed, the national court had to have established in adversarial proceedings the reasons why the operation had been mounted, the extent of police involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected. The Court accepted that the recordings of the applicant’s conversation with S. – in which previous drug sales, unsold drugs, potential customers and the prospects of a future deal had all been mentioned – were highly relevant to the conclusion that the applicant had had a pre-existing intent to sell drugs. Furthermore, B. had been called and cross-examined at the hearing and the applicant had had the possibility of putting questions to him concerning Vladimir’s identity and his alleged role as the FSB informant or as an agent provocateur. However, no such link – or indeed the existence of any such person – had been established as a result. As to the additional materials the applicant had alleged should have been before the trial court, the Court found that they would have been of no assistance to her, were superfluous or did not exist.
In sum, the applicant’s plea of incitement had been adequately addressed by the domestic courts, which had taken the necessary steps to uncover the truth and to eradicate the doubts as to whether she had committed the offence as a result of incitement by an agent provocateur. Their conclusion that there had been no entrapment had therefore been based on a reasonable assessment of evidence that was relevant and sufficient.
Conclusion: no violation (unanimously).
(See also Ramanauskas v. Lithuania [GC], 5 February 2008, no. 74420/01, Information Note no. 105)
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This summary by the Registry does not bind the Court.
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