FIRST SECTION
Application no. 59589/10
Konstantin Vladimirovich MOSKALEV
against Russia
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Konstantin Vladimirovich Moskalev, is a Russian national who was born in 1982 and lives in Krasnoyarsk. He is currently serving a prison sentence in Nizhniy Tagil. His application was lodged on 20 September 2010.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Interception of the applicant’s telephone conversations
At the material time the applicant was a police officer with the Economic Crimes Department of the Department of the Interior of the Krasnoyarsk Region.
On 22 July 2008 a certain Mr P. approached the applicant. Mr P. explained that he was a director of a private company, and requested the applicant’s assistance in obtaining a licence for the retail sale of alcoholic beverages to enable the company to sell such beverages in one of its shops.
According to the applicant, he intended to give Mr P. legal advice as to the possibility of, and formalities entailed in, obtaining such a licence, and informed the latter at their next meeting on 31 July 2008 that the related costs, covering such items as the collection of evidence and preparation of the relevant letters and claims, would amount to 200,000 Russian roubles (“RUB”) (approximately 5,000 euros (“EUR”)).
According to Mr P., the applicant informed him on 31 July 2008 that there were some obstacles to obtaining the licence and that he was prepared to assist him in return for the aforementioned amount. He allegedly stated that if Mr P. refused to pay, the licence would not be issued at all. Mr P., who regarded the applicant’s offer as extortion, decided to record their subsequent conversations using a dictaphone. He informed the applicant that he did not currently have the sum required and that he needed time to obtain it. He also requested the applicant to show him some identity documents. The applicant showed Mr P. a document confirming that he was a police officer.
Later that day, on 31 July 2008, the applicant telephoned Mr P. and urged him to obtain the required sum of money, stating that it should be delivered to him by noon on 1 August 2008. Mr P. recorded this conversation and on the same date handed over the recording to the internal security department of the Department of the Interior of the Krasnoyarsk Region (“the internal security department”). Police officers invited him to take part in an operational search activity, to which Mr P. consented. He was then provided with audio and video recording devices and the necessary amount of money in banknotes marked with a special substance.
In a decision of 31 July 2008 the head of the internal security department stated that there was evidence in the applicant’s actions of a criminal offence punishable under Article 290 § 2 of the Russian Criminal Code (bribe-taking by an official). Accordingly, with reference to section 8(3) of the Federal Law on Operational Search Activities (“the Operational Search Activities Act”), he ordered the interception of the applicant’s telephone conversations for a period of 48 hours. The decision further ordered that the Tsentralny District Court of Krasnoyarsk (“the District Court”) be informed of the interception within 24 hours.
In a letter of 1 August 2008 the internal security department informed the District Court of the interception of the applicant’s telephone calls in the absence of court authorisation. The letter stated in particular that the department had received information that the applicant had sought to extort RUB 200,000 from Mr P. in return for assistance in obtaining a licence for the retail sale of alcoholic beverages. According to the letter, the applicant had demanded that the money be delivered between 31 July and 2 August 2008. The exact time and place were to be discussed by telephone, the applicant having left his number with Mr P. The letter went on to note that there were indications of a criminal offence punishable under Article 290 § 2 of the Russian Criminal Code and that, with a view to obtaining the relevant evidence, the internal security department had intercepted the applicant’s telephone conversations on 31 July and 1 August 2008 on the basis of section 8(3) of the Operational Search Activities Act.
On the same date Mr P. telephoned the applicant to inform him that he had obtained the necessary sum, and offered to deliver the money to the applicant. They met later that day in the applicant’s car, where Mr P. left the money. Immediately after Mr P. left, the applicant was arrested by the police and he and his car were searched. He was then taken to a police station and interviewed, after which he was released subject to a ban on leaving a specified area.
2. Criminal proceedings against the applicant
(a) The preliminary investigation
On 18 August 2008 the Investigation Committee of the Krasnoyarsk Region brought criminal proceedings against the applicant in connection with the aforementioned incident, which was characterised under Article 159 § 1 of the Russian Criminal Code (fraud) as attempted fraudulent appropriation of the funds of a private company in the amount of RUB 200,000.
On 27 September 2008 the relevant charges were formally brought against the applicant; the charges were later adjusted on 15 October 2008 and 24 March 2009 respectively.
During the preliminary investigation the applicant lodged a number of motions and requests. In particular, he requested the investigator in charge to allow him to study the criminal case file, including the decision to institute criminal proceedings against him, the materials on the basis of which the proceedings had been instituted, and other materials in the file.
By a decision of 17 October 2008 the investigator in charge ordered that a copy of the decision to institute criminal proceedings be served on the applicant and that the remainder of his requests be rejected, given that under domestic law he would be able to study the case file on completion of the preliminary investigation. According to the applicant, he merely received a copy of the decision to institute criminal proceedings by post on 30 October 2008.
By a decision of 23 October 2008 the investigator in charge dismissed similar requests from the applicant but allowed his request for a lawyer of his choosing to represent him in the criminal proceedings.
On 28 October 2008 the investigator in charge also rejected a request from the applicant for an expert examination of the recordings of his telephone conversations and certain video recordings. The decision stated, in particular, that “the analysis and assessment of the evidence in the criminal case [show] that the fact that [the applicant] is guilty of the criminal offence [with which he is charged has been] proven by the body of evidence obtained in the case”. The decision concluded that there were therefore no grounds for carrying out the expert examination requested by the applicant.
By several decisions taken on 7 November and 12 December 2008 and 1 April 2009, the head of the Investigation Committee and the investigator in charge dismissed respectively a number of complaints from the applicant concerning the investigator in charge and a request made by him for certain procedural steps to be taken. All the decisions contained comments concerning the applicant’s guilt similar to those in the decision of 28 October 2008.
Also, in one of the decisions of 7 November 2008 and in the decision of 12 December 2008, in reply to the applicant’s complaint that his telephone conversations had been intercepted without court authorisation, the investigator in charge stated that section 8(3) of the Operational Search Activities Act permitted the carrying out of such activities, including telephone tapping, without court authorisation in urgent cases, provided that a court was notified within 24 hours of their commencement; court authorisation had to be obtained within 48 hours of the commencement of such activities, failing which they had to be discontinued. The decision further stated that the interception of the applicant’s telephone calls had been ordered by the head of the internal security department on 31 July 2001, because at that time there had been sufficient reason to believe that the applicant was involved in an ongoing criminal offence punishable under Article 290 § 2 of the Russian Criminal Code. According to the decision, the District Court had been notified of the operation the next day, and on the same day, that is, before the expiry of the 48-hour period laid down in the aforementioned legal act, the telephone tapping had been discontinued; hence, there had been no grounds for seeking any court authorisation.
On 20 April 2009 a bill of indictment was served on the applicant.
(b) The trial
During the trial the applicant challenged the admissibility of all the items of evidence obtained from the interception of his telephone calls, arguing that the police had had insufficient grounds for carrying out the operation and had not obtained court authorisation. The applicant therefore requested the court to exclude those items from the body of evidence.
In an interlocutory decision of 7 December 2009 the District Court rejected the applicant’s request. It acknowledged that there was no court order authorising the interception of the applicant’s telephone conversations in the case file; however, the operation had been carried out because the matter had been urgent, and therefore under section 8(3) of the Operational Search Activities Act no prior court authorisation was necessary. Moreover, the court had been notified of the operation within 24 hours, as required by national law, and it had not taken any decision prohibiting the operation, which had then been discontinued before the expiry of the 48-hour period. Therefore, in the District Court’s opinion, the interception of the applicant’s telephone conversations had been carried out in full compliance with the requirements of national law, and the evidence obtained as a result of the operation could not be excluded as inadmissible.
On 22 December 2009 the District Court convicted the applicant as charged and sentenced him to two years and two months’ imprisonment and stripped him of his rank in the police. The court based its judgment on the statements of numerous witnesses and various pieces of evidence including the recordings of the applicant’s telephone calls of 31 July and 1 August 2008. It rejected the applicant’s argument that the police had had no grounds for instigating any operational search activities concerning him, including the interception of his telephone conversations. The court noted that the police had had at their disposal sufficient information concerning the applicant’s involvement in an ongoing serious criminal offence and that they had been justified in instigating the operation in question. The court further rejected as unfounded the applicant’s argument that he had been incited by Mr P. to commit the offence.
In his appeal submissions against the judgment of 22 December 2009 the applicant complained that the trial court had based its findings on evidence obtained as a result of the interception of his telephone conversations, in the absence of court authorisation; the evidence should therefore have been declared inadmissible. He also mentioned that the events in which he had supposedly been involved had only taken place because of police entrapment.
On 8 April 2010 the Krasnoyarsk Regional Court upheld the applicant’s conviction on appeal, adhering to the reasoning of the trial court.
3. Proceedings for compensation for the excessive length of the criminal proceedings
The applicant subsequently instituted court proceedings seeking compensation in connection with the allegedly excessive length of the criminal proceedings against him.
By judgment of 18 April 2011 the Krasnoyarsk Regional Court dismissed the applicant’s claim, stating that the overall length of the proceedings in question had satisfied the ‘reasonableness’ requirement established by the European Court of Human Rights.
On 15 June 2011 the Krasnoyarsk Regional Court, sitting as an appellate court, upheld the above judgment on appeal.
B. Relevant domestic law
Section 8 of Federal Law no. 144-FZ of 12 August 1995 on operational search activities” (Федеральный закон от 12 августа 1995 № 144-ФЗ «Об оперативно-розыскной деятельности»), in so far as relevant, provides that operational search activities involving interference with an individual’s constitutional right to privacy of his or her correspondence, telephone conversations, postal, telegraphic and other communications transmitted by means of electronic and mail services, or with the privacy of the home, are to be carried out exclusively on the basis of judicial authorisation following the receipt of information (1) indicating that a criminal offence, in respect of which a preliminary investigation is indispensable, is being prepared, is ongoing or has been committed; (2) concerning persons preparing, committing or having committed a criminal offence, in respect of which a preliminary investigation is indispensable, and (3) concerning events, actions or omissions endangering the State, military, economic or environmental security of the Russian Federation.
In urgent cases, where there is an immediate danger of commission of a serious or particularly serious criminal offence and where there is information on events, actions and omissions endangering the State, military, economic or environmental security of the Russian Federation, the aforementioned operational search activities may be conducted in the absence of judicial authorisation, on the basis of a reasoned decision by the head of one of the bodies responsible for operational search activities, subject to the obligation to notify a court within 24 hours of their commencement. Court authorisation must be obtained within 48 hours of the commencement of such activities, failing which the body carrying them out must discontinue them.
The interception of telephone and other communications may be authorised only in respect of individuals suspected of, or charged with, moderately serious, serious or particularly serious criminal offences and persons who may have information about such criminal offences.
COMPLAINTS
The applicant complains under Article 6 of the Convention of various violations of his procedural rights in the criminal proceedings against him. In particular, with reference to Article 6 § 1 of the Convention, he alleges that the offence with which he was charged was the result of police entrapment and that the evidence obtained during that entrapment should have been rejected as inadmissible. He complains that the recordings of his telephone conversations should not have been admitted as evidence either, as those conversations were intercepted unlawfully, in the absence of any reasonable grounds or of court authorisation. The applicant also complains under this head about the excessive length of the criminal proceedings against him. He further complains that during the trial the domestic courts breached the procedural legislation when dealing with the motions and requests lodged by him, that a transcript of hearings before the first-instance court was falsified and that the courts incorrectly assessed the adduced evidence and incorrectly interpreted the domestic law.
The applicant complains under Article 6 § 2 of the Convention that the investigating authorities, in their decisions during the preliminary investigation, stated that he was guilty of the offence with which he had been charged, in breach of his right to be presumed innocent.
The applicant complains under Article 6 § 3 (a) of the Convention of a violation of his rights secured therein, on account of the fact that a copy of a decision to institute criminal proceedings against him was served on him only on 30 October 2008, and on account of the investigating authorities’ refusal to allow him to study the file in his criminal case at the preliminary investigation stage.
The applicant also relies on Article 8 of the Convention, alleging a violation of his right to respect for his private life. He maintains that the interception of his telephone conversations was unlawful as there was no reasonable suspicion of his involvement in any criminal activity and the operation in question was not sanctioned by a court.
QUESTIONS TO THE PARTIES
1. Did the applicant lodge his complaint under Article 8 of the Convention within the six-month time-limit established in Article 35 § 1 of the Convention?
2. Did the interception of the applicant’s telephone calls from 31 July to 1 August 2008 constitute interference with his right to respect for his private life and/or correspondence within the meaning of Article 8 § 1 of the Convention?
3. If so, was the interference resulting from the interception of the applicant’s telephone calls from 31 July to 1 August 2008 “lawful” within the meaning of Article 8 § 2 of the Convention? In particular,
(a) Was the absence of prior or subsequent court authorisation for the aforementioned interception compatible with section 8 of Federal Law no. 144-FZ of 12 August 1995 on operational search activities (Федеральный закон от 12 августа 1995 № 144-ФЗ «Об оперативно-розыскной деятельности, “the Operational Search Activities Act”)?
(b) Was any judicial assessment of the “urgency” of the circumstances, to which the law-enforcement authorities which carried out the interception of the applicant’s telephone calls referred in order to justify their decision to start the aforementioned interception, available to the applicant under section 8 of the Operational Search Activities Act or any other legal act? If not, did the Operational Search Activities Act or any other legal act provide the applicant with sufficient guarantees against arbitrary interference by the public authorities with his rights secured by Article 8 § 1 of the Convention?
(c) Do the provisions of the Operational Search Activities Act, and in particular section 8 thereof, meet the requirements of “quality of law” established in Article 8 § 2 of the Convention (see Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998‑V, with further references)?
4. Was the interception of the applicant’s telephone calls from 31 July to 1 August 2008 “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention? If so, was it proportionate to the aim(s) sought to be achieved?
5. Did the applicant have effective domestic remedies for his complaint under Article 8 of the Convention, as required by Article 13? In particular, was the trial court which examined the criminal case against the applicant empowered to assess the lawfulness, aims and proportionality of the alleged interference with the applicant’s rights under Article 8 of the Convention resulting from the interception of his telephone calls from 31 July to 1 August 2008, when it examined the applicant’s request for the evidence obtained as a result of that interception to be declared inadmissible? If not, were any other remedies, sufficiently established both in theory and in practice, available to the applicant at the material time in respect of his complaint under Article 8? If not, were the requirements of Article 13 taken in conjunction with Article 8 of the Convention satisfied in the present case?
6. Did the fact that the domestic courts admitted as evidence the recordings of the applicant’s telephone calls from 31 July to 1 August 2008 adversely affect the overall fairness of the criminal proceedings against him, regard being had to his allegations that the interception of those calls was unlawful? If so, has there been a breach of the applicant’s right to a fair trial under Article 6 § 1?
7. Did the wording of the procedural decisions taken between 28 October 2008 and 1 April 2009 by the investigator in charge and the head of the Investigation Committee, and more specifically the comment to the effect that “the fact that [the applicant] is guilty of the criminal offence [with which he is charged has been] proven by the body of evidence obtained in the case”, breach the applicant’s right to be presumed innocent, secured by Article 6 § 2 of the Convention?
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