THIRD SECTION
CASE OF MAMONTOV AND OTHERS v. RUSSIA
(Applications nos. 46796/06, 13260/10 and 52082/10)
JUDGMENT
STRASBOURG
21 June 2016
This judgment is final but it may be subject to editorial revision.
In the case of Mamontov and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helen Keller, President,
Johannes Silvis,
Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 31 May 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in three applications (nos. 46796/06, 13260/10 and 52082/10) 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 three Russian nationals. The application numbers, dates the applications were lodged and communicated, applicants’ names, personal details and names of legal representatives, and information concerning the relevant domestic judgments are set out in the Appendix.
2. The applicants all alleged that they had been convicted of drug offences following entrapment by the police, in violation of Article 6 § 1 of the Convention. They also complained under Article 6 §§ 1 and 3 (d) of the Convention that they had not been able to examine witnesses who had given evidence against them.
3. On the dates indicated in the Appendix the applications were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants were all targeted in undercover operations carried out by the police in the form of test purchases of drugs 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.
5. The applicants disagreed with their convictions and argued that the police had incited them to commit drug-related offences. They also complained that they had not been able to examine the witnesses who had testified against them.
II. RELEVANT DOMESTIC LAW
6. The relevant domestic law governing the use of undercover techniques 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‑... (extracts).
THE LAW
I. JOINDER OF THE APPLICATIONS
7. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical issues under the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
8. The applicants complained that they had been unfairly convicted of drug offences which they had been incited by the police to commit, and that their pleas of entrapment had not been properly examined in the domestic proceedings, in violation of Article 6 of the Convention, which reads:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
1. Application by Mr Mamontov (application no. 46796/06)
(a) Submissions by the parties
9. The Government submitted that Mr Mamontov could no longer claim to be a victim of the alleged violation. In particular, they argued that the domestic courts had reopened the criminal proceedings in his case and reduced the sentence imposed on him in relation to two initial incidents involving the sale of drugs. The domestic courts had also quashed his conviction in relation to a third incident, which had taken place after the initial test purchases.
10. Mr Mamontov acknowledged that the domestic courts had re‑examined his case in his favour in the new proceedings. However, he argued that the domestic courts had not properly addressed his plea of entrapment and, as a result, the conviction for the first drug sale still stood. Therefore, he had not lost his status as a victim of the alleged violation.
(b) The Court’s assessment
11. The Court notes that it has already considered identical issues regarding the loss of victim status in some recent Russian cases concerning entrapment. It held that the applicants in question, 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 had not been effective and in conformity with the requirements of Article 6 of the Convention and the case-law of the Court (see Lebedev and Others v. Russia, nos. 2500/07, 43089/07, 48809/07, 52271/07 and 54706/07, §§ 12-16, 30 April 2015, and Yeremtsov and Others v. Russia, nos. 20696/06, 22504/06, 41167/06, 6193/07 and 18589/07, §§ 17-21, 27 November 2014).
12. 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 involving the sale of drugs, and had held that only the remaining incidents 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. The domestic courts had also 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).
13. Turning to the facts of Mr Mamontov’s application, the Court observes that, as with the applicants in the cases of Lebedev and Others and Yeremtsov and Others (both cited above), the applicant in the present case has not lost his victim status. The re-examination of his criminal case by the domestic courts was conducted in the same manner as the re‑examination of the applicants’ cases in Lebedev and Others and Yeremtsov and Others (ibid.,), and does not appear to have been effective. The domestic courts in the present case did not consider the arguments which lay at the heart of the applicant’s entrapment complaint, and, like the domestic courts in the cases of Lebedev and Others and Yeremtsov and Others (ibid.,), were not in a position to assess whether any violation of the applicant’s Article 6 rights had occurred in the course of undercover operations. Thus, although the outcome of the re‑examination of the applicant’s case was favourable to him, it nevertheless fell short of the standards developed in the Court’s case‑law, in the light of Article 6 of the Convention (see Lebedev and Others and Yeremtsov and Others, both cited above, §§ 12‑16 and §§ 17‑19, respectively).
14. Having regard to the above, the Court dismisses the Government’s objection as to the loss of Mr Mamontov’s victim status, and finds his complaint concerning entrapment by the police admissible.
2. Applications by Mr Bachinskiy and Ms Kardasheva (applications nos. 13260/10 and 52082/10)
15. The Court also finds that the complaints concerning entrapment by the police brought by the other two applicants under Article 6 § 1 of the Convention 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. They must therefore be declared admissible.
B. Merits
16. The Government claimed that the test purchases carried out in all of the present cases 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 had been provided with the necessary procedural safeguards in the course of the proceedings.
17. The applicants claimed that the police had not had any reason to mount undercover operations, and that their actions had amounted to entrapment. They further argued that the domestic courts had not properly examined their allegations that the offences with which they had been charged had been incited by the police.
18. The Court 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 prevents 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 present case is identical to other Russian cases on entrapment, where the Court has found violations on account of deficiencies in the existing procedure for the authorisation and administration of test purchases of drugs (see Lebedev and Others; Yeremtsov and Others; Lagutin and Others; Veselov and Others; Vanyan; and Khudobin, all cited above).
19. Accordingly, the Court finds no reason to depart from its earlier findings on the matter, and holds that the criminal proceedings against all three applicants 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 of the Convention in respect of each applicant.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION
20. The applicants also complained that they had not been able to examine the witnesses who had testified against them. Mr Mamontov claimed that F. and Kh., who had overheard his conversation with an undercover police officer, had not been questioned in court. Mr Bachinskiy alleged that M. and G., who had bought drugs from him, had not been questioned in court. Ms Kardasheva claimed that the court had not questioned T., who had bought drugs from her. The applicants relied on Article 6 §§ 1 and 3 (d) of the Convention. The Government submitted no comments concerning the absent witnesses in Mr Mamontov’s case. They further claimed that that one of the witnesses in Mr Bachinskiy’s case had died, and submitted no comments concerning the other absent witness. Finally, they submitted that Ms Kardasheva had been able to question T. during pre-trial witness confrontation procedure.
21. The Court has previously held that the right to examine or have examined witnesses whose testimonies may be relevant to 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). It therefore considers that this complaint is linked to the one examined above, and concerns proceedings which the Court has found to be unfair. Accordingly, it declares the complaints about absent witnesses brought by all three applicants admissible.
22. However, having regard to the finding relating to Article 6 § 1 of the Convention (see paragraph 19 above), the Court considers that it is not necessary to examine separately whether there has been a violation of Article 6 § 3 (d) of the Convention in this case.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
23. Lastly, the applicants 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 the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. 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
25. The applicants claimed the following amounts in respect of non‑pecuniary damage:
Mr Mamontov – 547,000 euros (EUR);
Mr Bachinskiy – EUR 100,000;
Ms Kardasheva – EUR 4,000.
26. The Government submitted that the applicants’ claims in respect of non-pecuniary damage were excessive or unreasonable.
27. In the present case, the Court considers that an award of just satisfaction must take account of the fact that the applicants did not have a fair trial, because they were convicted of drug offences incited by the police in violation of Article 6 of the Convention. They sustained non-pecuniary damage as a result of the violation of their rights. However, the sums claimed by the applicants appear to be excessive. Making its assessment on an equitable basis, the Court awards EUR 3,000 to each applicant in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
28. Ms Kardasheva also claimed 100,000 Russian roubles (RUB) (approximately EUR 1,200) in respect of costs and expenses incurred before the Court. She submitted a copy of the legal services agreement between herself and her lawyer.
29. The Government submitted no comments regarding the applicant’s claim in respect of costs and expenses.
30. The Court observes that the agreement submitted by Ms Kardasheva contains no detailed information on the specific services rendered to her during the proceedings before the Court. In this regard, the Court reiterates that, pursuant to Rule 60 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see Buscarini and Others v. San Marino [GC], no. 24645/94, § 48, ECHR 1999‑I, and Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 68, ECHR 2002‑V).
31. Accordingly, as neither Ms Kardasheva nor her lawyer has furnished details of the work done or the hourly rates charged, it is not possible for the Court to determine whether the costs were necessarily incurred and reasonable as to quantum. In these circumstances and in the light of its case‑law (see paragraph 30 above), the Court rejects Ms Kardasheva’s claim for costs and expenses in its entirety.
C. Default interest
32. 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. Declares the complaints under Article 6 § 1 of the Convention concerning the applicants’ convictions for criminal offences incited by the police, and the complaints under Article 6 §§ 1 and 3 (d) regarding the examination of witnesses, admissible and the remainder of the applications inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of each applicant;
4. Holds that there is no need to examine the complaints under Article 6 §§ 1 and 3 (d) the Convention;
5. Holds
(a) that in respect of non-pecuniary damage, the respondent State is to pay to each applicant, within three months, EUR 3,000 (three thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsHelen Keller
RegistrarPresident
APPENDIX
No.
Application No.
Dates applications lodged and communicated
Applicant’s name,
date of birth and place of residence
Represented by
Final judgment
46796/06
03/10/2006
09/11/2012
Vladislav Borisovich MAMONTOV
14/01/1976
Tambov
Tambov Regional Court, 23 August 2012 (supervisory review)
13260/10
25/01/2010
17/11/2010
Yuriy Vladimirovich BACHINSKIY
14/04/1981
Bataysk, Rostov Region
Rostov Regional Court, 23 September 2009.
52082/10
05/07/2010
17/11/2010
Yekaterina Gennadyevna KARDASHEVA
16/07/1986
Nizhniy Ingash, Krasnoyarsk Region
Yekaterina Sergeyevna ZOBKOVA
Krasnoyarsk Regional Court, 25 March 2010
Full & Egal Universal Law Academy