THIRD SECTION
DECISION
Application no. 74253/11
Konstantin Valeryevich KOLBAS against Russia
and 7 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 9 July 2020 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The list of applicants is set out in the appended table.
The applicants’ complaints under Article 6 § 1 of the Convention concerning the entrapment by State agents were communicated to the Russian Government (“the Government”). In application no. 74253/11, the applicant also raised other complaints under Articles 3 and 13 of the Convention.
THE LAWJoinder of the applications
Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.Complaints under Article 6 § 1 of the Convention (entrapment by State agents)
The applicants complained that they had been unfairly convicted of drug‑related criminal offences incited by the police. These complaints fall to be examined under Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court has emphasised, in a number of cases, the role of domestic courts in dealing with criminal cases where the accused alleges that he was incited to commit an offence. Any arguable plea of incitement places the courts under an obligation to examine it and make conclusive findings on the issue of entrapment, with the burden of proof on the prosecution to demonstrate that there was no incitement (see Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 70-71, ECHR 2008, and Khudobin v. Russia, no. 59696/00, §§ 133-135, ECHR 2006‑XII (extracts)).
The Court notes that the applicants’ plea of incitement was adequately addressed by the Russian courts, which took the necessary steps to uncover the truth and to eradicate the doubts as to whether the applicants had committed the offence as a result of incitement by an agent provocateur. Their conclusion that there had been no entrapment was based on a reasonable assessment of evidence that was relevant and sufficient. The Court also does not lose sight of the fact that during the criminal proceedings before the Russian courts the applicants either denied the facts imputed to them and/or contested the legal classification of their acts or directly confirmed their involvement in the drug sale, having changed their versions of events. Nevertheless, despite the unclearly formulated incitement defence of the applicants in the domestic proceedings (see Lelyukin v. Russia (dec.), no. 70841/10, 25 August 2015; Bagaryan and Others v. Russia (dec.), nos. 3346/06 and 4 others, 12 November 2013; Trifontsov v. Russia (dec.), no. 12025/02, 9 October 2012; and Koromchakova v. Russia (dec.), no. 19185/05, 13 December 2016), the Russian courts took all possible steps to verify each version to be certain that the acts imputed to the applicants did not result from unlawful actions on the part of investigative authorities.
Having regard to the scope of the judicial review of the applicants’ plea of incitement, the Court finds that the applicants’ complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 (see, for similar reasoning, Bannikova v. Russia, no. 18757/06, §§ 74-79, 4 November 2010)Remaining complaints
In application no. 74253/11 the applicant also raised complaints under Articles 3 and 13 of the Convention about conditions of his pre-trial detention.
The Court notes that on 17 March 2020 it adopted a decision in the case of Shmelev and Others v. Russia (applications nos. 41743/17 and 16 others), finding that the new compensatory remedy envisaged by the Russian Compensation Act was an effective remedy, in particular, for all cases of past pre-trial detention and some situations of correctional detention alleged in breach of domestic provisions. The Court therefore rejects the applicant’s complaints in this regard for failure to exhaust domestic remedies. This part of application no. 74253/11 should thus be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 30 July 2020.
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)
74253/11
04/11/2011
Konstantin Valeryevich KOLBAS
28/12/1980
15/07/2008
opium
17/07/2008
opium
27/08/2008
opium
Anonymous / unverified tip
Anonymous / unverified tip
Anonymous / unverified tip
Tomsk Regional Court, 05/12/2011
13542/16
03/03/2016
Eduard Andreyevich KHROMAYEV
25/09/1990
Leonidchenko Valentina Vladimirovna
Moscow
25/09/2013
α-Pyrrolidinovalerophenone
03/10/2013
α-Pyrrolidinovalerophenone
fellow drug user, anonymous / unverified tip
fellow drug user, anonymous / unverified tip
Rostov Regional Court 08/09/2015
37481/16
20/06/2016
Aleksandr Vasilyevich MAKAROV
14/06/1981
27/04/2015
α-Pyrrolidinovalerophenone
fellow drug user, anonymous / unverified tip
Chelyabinsk Regional Court 23/12/2015
11520/19
30/01/2019
Aleksandr Andreyevich SHMAKOV
12/07/1994
04/03/2017
"Shokolad" (synthetic drug)
fellow drug user
Krasnoyarsk Regional Court, 31/07/2018
21214/19
08/04/2019
Tagy Akif ogly GASANZADE
30/06/1997
Bibik Oleg Ivanovich
Ivanovo
02/02/2018
mephedrone
26/02/2018
amphetamine
Anonymous / unverified tip
Anonymous / unverified tip
Kostroma Regional Court, 05/02/2019
29259/19
17/05/2019
Yana Vyacheslavovna OVCHINNIKOVA
29/06/1989
Spiridonov Aleksey Vyacheslavovich
Novocheboksarsk
20/01/2011
hashish
fellow drug user
Supreme Court of the Chuvashiya Republic, 24/04/2019
29522/19
17/05/2019
Maksim Alekseyevich MIKHAYLOV
08/06/1989
Spiridonov Vyacheslav Leonidovich
Novocheboksarsk
20/01/2011
hashish
fellow drug user
Supreme Court of the Chuvashiya Republic, 24/04/2019
56652/19
29/10/2019
Ivan Narimanovich MAKSIMOV
30/11/1987
Miroshnikov Aleksey Sergeyevich
Arkhangelsk
03/02/2019
hashish
lack of incriminating information, repeated calls
Nenets Autonomous Regional Court, 30/09/2019
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