Information Note on the Court’s case-law 250
April 2021
Kuzmina and Others v. Russia - 66152/14, 76054/14, 77426/14 et al.
Judgment 20.4.2021 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Police entrapment through drug test purchases, resulting from structural problems in domestic regulatory framework: violation
Article 46
Article 46-2
Execution of judgment
General measures
Respondent State required to implement further reform of regulatory framework for operational-search activities
Facts – The applicants were convicted of criminal offences relating drug dealing, after test purchases ordered by the police and Federal Drug Control Service (ФСКН – “FSKN”). In each case, the applicants made an unsuccessful plea of entrapment before the domestic courts.
Law – Article 6 § 1 : The applications were to be assessed under the substantive and procedural tests of incitement.
(a) Substantive test
The present case followed a pattern whereby the test purchase had been ordered on the basis of an allegedly spontaneous contribution of information by a private source, who had subsequently acted in the test purchase as a buyer, and whose independence from the police had not been subsequently verified by the trial court. Given the importance of the distinction between a complaint brought by an individual and information coming from a police collaborator or informant, the people acting as buyers in the test purchases in question had run a significant risk of extending their role to that of agents provocateurs, susceptible of leading to a breach of Article 6 § 1 .
Further, in all of the present applications the police, having received the information from their sources, had proceeded directly to the test purchase without considering other investigative steps to verify the suspicion that the applicants were drug dealers.
It was difficult to conclude on the basis of the case files that the investigating authorities had had good reason to suspect the applicants of drug dealing. The informal and spontaneous way in which the test purchases had been ordered and implemented, leading the Court to presume that entrapment had indeed taken place, had been the result of the deficient procedure for authorising test purchases. They had been ordered by simple administrative decisions of the bodies which had later carried out the operations; the decisions had contained very little information as to the reasons for and purpose of the planned test purchases; and the operations had not been subjected to judicial review or any other independent supervision. There had been no need to justify the decision and virtually no formalities to follow.
(b) Procedural test
Throughout the judicial proceedings, the applicants had maintained that they had been incited to commit criminal offences. Accordingly, in each case the domestic courts had been under an obligation to examine the plea of entrapment.
However, the courts had made only a limited assessment of the applicant’s pleas of entrapment in each case, failing to examine the reasons for the undercover operation and the circumstances surrounding it and disregarding the applicant’s allegations of pressure from the police during the undercover operation. In none of the cases in question had the investigating authorities proved, or had to prove, the pre-existing intent on the part of the applicants to commit criminal acts at the time when the source had begun collaboration with the police. In the cases where, during trial, certain information had not been disclosed on the basis of confidentiality, the courts had not ensured that all information relevant to the examination of the entrapment be put openly before the trial court or tested in an adversarial manner, or given detailed reasons for the refusal to do so, contrary to the requirements of Article 6.
(c) Overall
Those shortcomings in the undercover operations and the failure of the trial courts to provide an effective judicial review of the entrapment pleas had been the result of the lack of a regulatory framework providing for safeguards against abuse in the conduct of test purchases. The structural nature of the problem had already been established in the Court’s case-law (Veselov and Others v. Russia, 23200/10 et al., 2 October 2012; Lagutin and Others v. Russia).
Conclusion: violation (unanimously).
Article 46: The Court had already stated the need to adopt general measures in order to address the structural problem underlying entrapment cases (Lagutin and Others; Nosko and Nefedov v. Russia), without however making specific indications under Article 46. However the finding of new violations on account of subsequent events raised the question of whether that was sufficient.
By December 2020, the court had adopted twenty judgments concerning a total of 121 similar individual applications. The facts of many of those cases had occurred after the adoption of the general measures referred to by the respondent Government. The problem had multifaceted repercussions beyond compromising a fair hearing. The scope of the problem could be inferred from the fact that a significant proportion of all convicts in Russia had been imprisoned for drug-related criminal offences. That continued to have a significant negative influence on several other human rights in Russia, for example, the overcrowding of remand prisons leading to violations of Article 3 on account of poor conditions of detention and transfer.
In view of the above, the Court, while noting the efforts made so far by the Russian authorities, in particular the Supreme Court, to improve the examination of entrapment pleas at domestic level, and reiterating that the choice of instruments remained fully at the discretion of the respondent Government, considered it appropriate to indicate under Article 46 that a further reform of the existing regulatory framework was required.
Under the Court’s case-law, the authorisation of test purchases and similar covert operations had to be given by a body separate from the body carrying out the operation. The role of the authorising independent body was to verify the existence of good reasons for the planned operation, which had to be justified by concrete and detailed submissions of the requesting body. The same body also had to supervise the conduct of the operation, or ensure that the file contained sufficient information for another independent body – ultimately the court – to conduct a meaningful review in order to exclude entrapment and other breaches of the law. Different legal systems might vest those powers on a judicial or prosecution authority, or, more rarely, on another senior official, such as the head of the national interior agency.
As to the authorisation of test purchases by prosecutors, the introduction of such a mechanism had indeed resulted in the resolution of similar problems in some countries (Romania, Lithuania, Latvia, Moldova). However, there was no certainty that the reforms carried out in those countries could be successfully replicated in the Russian legal system.
On the other hand, the Court had emphasised the connection between the preliminary review of the reasons for carrying out undercover operations and the court’s subsequent capacity to examine pleas of entrapment effectively. For that reason, it considered that judicial authorisation would enhance the effectiveness of the review at both stages: during the investigation and subsequently, during the examination of the criminal case on the merits. The introduction of such judicial authorisation had resulted in the resolution of a similar problem, for example, in Portugal. In that connection, for some other operational-search activities, such as home searches and telephone interceptions, judicial authorisation was already necessary under Russian law. The institutional and procedural rationalities therefore suggested that judicial powers might be extended to also authorise undercover operations in a similar way. The domestic courts could then carry out a proper review of entrapment complaints in conformity with Convention standards.
In short, the Court considered it appropriate to specify that the Russian legal framework pertaining to the conduct of operational-search activities had to be amended so as to provide for a clear and foreseeable procedure for authorisation of undercover operations, such as test purchases and operational experiments, by a judicial body providing effective guarantees against abuse.
Article 41: Finding of violation sufficient, in respect of non-pecuniary damage.
(See also Lagutin and Others v. Russia, 6228/09 et al., 24 April 2014, Legal Summary; Nosko and Nefedov v. Russia, 5753/09 and 11789/10, 30 October 2014)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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