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 LAWJOINDER 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.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.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.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, Decides to join the applications; Declares the applications admissible;Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning entrapment by State agents;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);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 TigerstedtAlena Poláčková
Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 6 § 1 of the Convention
(entrapment by State agents)
No.
Application no.
Date of introduction
Applicant’s name
Date of birth
Representative’s name and location
Test purchase date
Type of drugs
Specific grievances
Final domestic judgment (appeal court, date)
Other complaints under well-established case-law
12233/10
09/02/2010
Denis Gennadyevich LIVADNIY
03/01/1978
13/11/2008
marijuana
undercover policeman, fellow drug user, lack of incriminating information, repeated calls
Volgograd Regional Court
11/08/2009
59534/10
27/09/2010
Yevgeniy Mikhaylovich FEDOROV
24/06/1971
Makarov Igor Vladimirovich
Novoselye
11/02/2010
desomorphine
04/03/2010
desomorphine
fellow drug user, the seller, Ms K., gave money to the applicant in advance so that the latter could prepare drugs for them both
fellow drug user
Astrakhan Regional Court 19/08/2010; Supreme Court of the Russian Federation 18/04/2013;
Presidium of the Astrakhan Regional Court 21/05/2013, amending the conviction
Art. 6 (1) - and Art. 6 (3) (d) - unfair trial in view of restrictions on the right to examine witnesses - prosecution witnesses Mr D. the sole eye-witness to the alleged preparation and sale of the drugs, and Ms K., the buyer of the drugs on both occasions, were not examined for unknown reasons, despite the applicant’s objections to the reading out of their statements
10424/11
17/01/2011
Dmitriy Maksimovich SAKHNOV
07/06/1993
19/08/2009
cannabis
26/08/2009
Hashish oil
undercover police officer, lack of incriminating information
pressure to sell, anonymous/unverified tip, undercover police officer, pressure to sell, repeated calls
Astrakhan Regional Court
16/09/2010
11945/11
01/02/2011
Igor Andreyevich LIBET
02/10/1992
19/08/2009
cannabis
26/08/2009
Hashish oil
undercover policeman, lack of incriminating information
anonymous/unverified tip, undercover policeman, pressure to sell, repeated calls
Astrakhan Regional Court
16/09/2010
15044/11
07/02/2011
Stanislav Yevgenyevich MOROZOV
20/03/1993
19/08/2009
cannabis
26/08/2009
cannabis
anonymous/unverified tip, undercover policeman, pressure to sell, repeated calls
anonymous/unverified tip, undercover policeman, pressure to sell, repeated calls
Astrakhan Regional Court
16/09/2010
77167/11
24/11/2011
Viktor Viktorovich SOKOLOV
11/01/1989
Mikhaylova Olga Olegovna
Moscow
18/05/2010
hashish
repeated calls, lack of incriminating information, pressure to sell, fellow drug user
Moscow City Court 01/08/2011
45792/13
12/07/2013
Igor Sergeyevich KLEMIN
06/01/1988
28/07/2012
methamphetamine
fellow drug user, lack of incriminating information, pressure to sell
Supreme Court of the Republic of Tatarstan 11/01/2013
57588/16
14/09/2016
Nikolay Tserenovich SHARLDAYEV
11/06/1983
10/08/2017
cannabis
fellow drug user, lack of incriminating information, repeated calls
Rostov Regional Court 19/04/2016
68832/16
16/11/2016
Roman Vladimirovich GULEVSKIY
25/08/1986
Boyarkina Olga Sergeyevna
Taganrog
01/10/2015
cannabis
fellow drug user, repeated calls, lack of incriminating information, no previous convictions, the informant stated that the applicant had never sold drugs before (they merely consumed them together)
Rostov Regional Court 06/07/2016
34335/17
28/04/2017
Sergey Yevgenyevich GUBAREV
27/04/1989
08/05/2015
heroin
fellow drug user, lack of incriminating information, anonymous/unverified tip
Kaluga Regional Court 28/10/2016
74741/17
13/10/2017
Ignatiy Vasilyevich ZINOVYEV
17/03/1992
Tsiskarishvili Vladlen Aleksandrovich
Moscow
20/08/2016
hashish
lack of incriminating information, pressure to sell, repeated calls, fellow drug user
Moscow City Court 17/04/2017
78718/17
02/11/2017
Valeriy Valeryevich BALMATKOV
12/11/1983
Tsvetkova Nataliya Olegovna
Moscow
12/11/2015
heroin
fellow drug user, repeated calls
Moscow City Court 10/05/2017
79278/17
23/10/2017
Andrey Yuryevich TSIGELMAN
24/01/1991
Shirokov Oleg Valeryevich
Nizhniy Tagil
25/03/2015
AB-Pinaca (syntetic drug)
repeated calls, fellow drug user
Sverdlovsk Regional Court
04/05/2017
19074/18
05/04/2018
Yegor Aleksandrovich GOLOVANOV
25/09/1990
Kostyushev Vladimir Yuryevich
Moscow
23/03/2017
amphetamine
fellow drug user, lack of incriminating information
Moscow City Court 25/01/2018
21552/18
30/04/2018
Fedor Anatolyevich NISHANOV
08/06/1983
Yunak Stanislav Stepanovich
Vladivostok
09/02/2016
cannabis
repeated calls, lack of incriminating information, fellow drug user, pressure to sell, anonymous/unverified tip
Primorye Regional Court
30/10/2017
8584/19
26/12/2018
Aleksey Andreyevich NOVIKOV
09/10/1996
15/12/2017
hashish
fellow drug user, pressure to sell, lack of incriminating information
Perm Regional Court 12/07/2018
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