FIRST SECTION
DECISION
Application no. 70841/10
Stanislav Aleksandrovich LELYUYKIN
against Russia
The European Court of Human Rights (First Section), sitting on 25 August 2015 as a Committee composed of:
Khanlar Hajiyev, President,
Eric Møse,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 3 November 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Stanislav Aleksandrovich Lelyuykin, is a Russian national, who was born in 1977 and lives in Plishkino (Irkutsk region).
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was targeted in undercover operation conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ).
On 16 April 2010 the Butyrskiy District Court of Moscow examined the applicant’s case. The applicant was represented by a lawyer. He pleaded guilty to one episode of drug-dealing. His testimony was corroborated by numerous pieces of evidence, including the statements of named witnesses and material evidence gathered by the police. During the trial, the applicant did not dispute the reasons for an undercover operation, did not claim that he had been incited to sell drugs and did not challenge the admissibility of evidence gathered during the test purchase. The court found the applicant guilty of drug-dealing and sentenced him to six years in prison.
The applicant appealed claiming that he had not had the intent to sell drugs, that the undercover agent convinced him to do so, that his sentence was too harsh and that he had merited some leniency.
On 9 June 2010 the Moscow City Court examined the applicant’s appeal complaint. The applicant was represented by a lawyer. The appeal court examined the documents of the applicant’s case file and found that the applicant’s points of appeal were unsubstantiated and upheld the judgment of the first-instance court.
COMPLAINT
The applicant complained under Article 6 of the Convention that he had been convicted of criminal offences incited by the police.
THE LAW
The applicant complained that his conviction for drug-dealing was in breach of Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
In several cases against Russia, the Court has found that applicable domestic law did not provide for sufficient safeguards in relation to test purchases of drugs, and has stated the need for their judicial or other independent authorisation and supervision (see Vanyan v. Russia, no. 53203/99, §§ 46-49, 15 December 2005; Khudobin v. Russia, no. 59696/00, § 135, ECHR 2006‑XII (extracts), Bannikova v. Russia, no. 18757/06, §§ 48-50, 4 November 2010; Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, §§ 126-128, 2 October 2012; and Lagutin and Others v. Russia, nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, 24 April 2014). Furthermore, the Court has emphasised 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).
That being said, the Court is not persuaded that the situation under examination falls within the category of “entrapment cases”, even prima facie. Consequently, the defects in Russian law and practice identified by the Court in some previous cases are irrelevant in the case at hand.
In particular, the Court observes that the applicant has not made out a plausible agent provocateur complaint before the domestic instances.
According to the documents submitted by the applicant, he did not raise the issue of entrapment in the first-instance court, even in substance (see paragraph 4 above). The applicant alleged in the statement of appeal that he had not had the intent to sell drugs and that the undercover agent had convinced him to do so. However, his argument was made in passing to other legal arguments and did not bear upon the alleged lack of justification for carrying out the test purchase which is the necessary part of the agent provocateur defence (see Trifontsov v. Russia (dec.), no. 12025/02, § 34, 9 October 2012, and Bagaryan v. Russia (dec.), no. 3343/06, § 5, 12 November 2013). The appeal court found that the applicant had failed to substantiate duly his claim of entrapment (see paragraph 6 above). Finally, the applicant, who was represented by a lawyer during the proceedings in both courts, did not submit any special reasons that, in his opinion, prevented him from duly raising the complaint of entrapment before the domestic courts.
Accordingly, it follows that the applicant did not make out his entrapment complaint clearly and in good time in the domestic proceedings (see Bagaryan, § 5, cited above).
Having regard to the above, the Court rejects the applicant’s agent provocateur complaint for non‑exhaustion of domestic remedies and for being manifestly ill-founded, in accordance with Article 35 §§ 1, 3 and 4 of the Convention.
Lastly, the Court has examined the other complaints submitted by the applicant. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s 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 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 17 September 2015.
André WampachKhanlar Hajiyev
Deputy RegistrarPresident
Full & Egal Universal Law Academy