Communicated on 5 December 2019
THIRD SECTION
Application no. 60854/14
Viktor Nikolayevich BIBIKOV against Russia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Russian nationals. The application numbers, the dates of lodging the applications, the applicants’ names, their personal details, the names of their legal representatives, where applicable, and the particulars of the domestic proceedings are set out in the Appendix.
The facts of the cases may be summarised as follows.Applications nos. 60854/14 and 67411/17
The applicants have been convicted of criminal offences in the domestic proceedings (see Appendix for details). The principal evidence against them derived from operational experiments (undercover operations) conducted in accordance with Section 6 of the Operational-Search Activities Act of Russia.
At their trials the applicants claimed that the offences in question were committed as a result of entrapment by the authorities. They alleged the involvement of agents provocateurs. These objections were dismissed by the domestic courts.
The respective judgments were issued by the judicial bodies on the dates indicated in the Appendix below. The judgments became final.Application no. 60854/14
Between November 2010 and 1 November 2011 the applicant bought on the Internet a retractable pen, three hand watches and a car alarm key that were equipped with secret photo and video mechanisms. According to the applicant, he bought those objects for his personal collection.
On 5 April 2012 he sold the devices to an undercover agent of the Federal Security Service (“FSB”) of Russia who participated in an undercover operation allegedly upon receipt of incriminating information from an unidentified source that the applicant “was illegally selling undercover recording devices”.
The applicant was convicted of unlawful acquisition and sale of undercover recording devices in breach of applicable Russian laws relating to citizens’ privacy and licensing of undercover activities.Application no. 67411/17
In May 2015 the applicant who was unemployed at the time, advertised his computer-repair services, including installation of software on the computers. He was contacted by an undercover police officer Mr Ph., who was assigned to check operative information incriminating the applicant. They agreed that the applicant would install certain programs for Mr Ph.
On 31 July 2015 the applicant installed the counterfeit software on Mr Ph.’s computer. It was established that the applicant had bought that software on the Internet shortly before installing it.
On the same day the applicant confessed to having committed a crime but he retracted his confession at the trial having stated that he had done so under the physical and psychological duress of police officers. The trial and the appeal court found those allegations unsubstantiated.
The applicant had previously been convicted of acquiring and distributing counterfeit software and of copyright infringement.Application no. 72174/16
In January 2010 the applicant, who was a military officer at the time, found ten bricks of hexogen, a chemical substance commonly used for making military-grade explosives. He brought the bricks to his house and kept them there. On 3 April 2015 he sold five of those bricks to an undercover police agent who participated in a covert operation that had been launched upon receipt of incriminating information in respect of the applicant.
On 3 June 2015 he sold six packages of marijuana to the same undercover agent. On 21 August 2015 during the search of the applicant’s home the police found and seized a large amount of marijuana.
On 26 January 2016 the investigator, in the applicant’s and his lawyer’s presence and without a court order, searched four mobile telephones that belonged to the applicant and accessed calls and SMS records of the applicant’s customer accounts with the respective mobile telephone companies that were registered between 28 May and 4 June 2015 and between 1 and 31 August 2015.
The applicant was convicted of unlawful acquisition, storing and sale of explosives, sale of drugs and storing of drugs in large quantities with the intention of selling them.
On appeal he complained that the search of his mobile phones had been carried out in breach of his right to respect for his correspondence. The appeal court did not accept his arguments, stating that according to the transcript of the search, on the day of the search, 26 January 2016, the applicant had not objected to the search of his mobile telephones’ records.Application no. 54891/18
In June-July 2017 the applicant worked as a senior inspector at a state agency responsible for the protection of natural resources in the Magadan Region.
Between 30 June and 23 July 2017 an undercover operation was launched against him after a local fisherman, Mr R., brought a complaint alleging that the applicant extorted a bribe from him in exchange for a favourable outcome of an inspection of Mr R.’s commercial fishery activities.
The applicant was convicted of extorting and accepting a bribe in a substantial amount. According to the applicant, he was placed in a metal cage during the examination of his criminal case by the first-instance court. He also alleged in the domestic proceedings that his conversations with an undercover agent had been recorded without a court order.
COMPLAINTS
The applicants in applications nos. 60854/14 and 67411/17 complain under Article 6 § 1 of the Convention that they had been convicted of criminal offences which they had committed only because they had been incited to do so by an agent provocateur.
The applicant in application no. 72174/16 complains under Article 8 of the Convention that the police accessed the records of his mobile telephones without a court order.
The applicant in application no. 67411/17 also complains under Article 6 §§ 1 and 3 (c) that he confessed to a crime without a lawyer present.
Lastly, the applicant in application no. 54891/18 complains under Article 3 of having been placed in a metal cage during consideration of his case by the trial court. He also complains under Article 8 about audio recordings of his conversations with an undercover agent having been made without a court order.
QUESTIONS TO THE PARTIES
Applications nos. 60854/14 and 67411/17
On account of undercover operations in the applicants’ cases and having regard to the judgments in the cases of Veselov and Others v. Russia, nos. 23200/10 and 2 others, 2 October 2012; Nosko and Nefedov v Russia, nos. 5753/09 and 11789/10, 30 October 2014 and Volkov and Adamskiy v. Russia, nos. 7614/09 and 30863/10, 26 March 2015, did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention?
Application no. 72174/16
Has there been a violation of the applicant’s rights guaranteed by Article 8 of the Convention as a result of the police accessing his mobile telephone records on 26 January 2016 without a court order?
Application no. 67411/17
As to his confessing to a crime without a lawyer present, did the applicant exhaust effective domestic remedies available to him in respect of this complaint? If so, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (c) of the Convention?
Application no. 54891/18
Has there been a violation of the applicant’s rights guaranteed by Article 3 of the Convention on account of his being placed in a metal cage during the criminal proceedings in the first-instance court between 2 February and 18 May 2018 (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts))?
Has there been a violation of the applicant’s rights guaranteed by Article 8 of the Convention as a result of the audio recordings of the applicant’s conversations with an undercover agent made by the Federal Security Service of Russia without a court order between 30 June and 23 July 2017 in the course of an undercover operation (see e.g., Akhlyustin v. Russia, no. 21200/05, 7 November 2017)?
APPENDIX
No.
Application no.
Lodged on
Applicant’s name
Date of birth
Place of residence
Represented by
Domestic proceedings
60854/14*
17/08/2014
Viktor Nikolayevich BIBIKOV
30/03/1950
Bryansk
The Fokinskiy District Court of Bryansk, 5 March 2014;
The Bryansk Regional Court, 7 May 2014.
72174/16*
23/11/2016
Anatoliy Nikolayevich POPOV
05/05/1972
Krasnodar
Vitaliy Nikolayevich KATSKO
The Court of the Krasnodar Military Garrison, 15 April 2016;
The Krasnodar Regional Court, 26 May 2016.
67411/17
31/08/2017
Aleksandr Andreyevich TATURIN
21/03/1982
Tyumen
Yevgeniy Gennadyevich SHALAMOV
The Centralniy District Court of Tyumen, 11 August 2016;
The Tyumen Regional Court, 16 June 2017.
54891/18*
12/11/2018
Ruslan Sergeyevich PENKOV
10/09/1976
Magadan
Viktoriya Leonidovna TAYSAYEVA
The Magadan Town Court of the Magadan Region, 23 May 2018;
The Magadan Regional Court, 20 September 2018.
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