Communicated on 1 September 2020
Published on 21 September 2020
THIRD SECTION
Application no. 20977/18
Andrey Andreyevich MIROSHNIK
against Russia
lodged on 19 April 2018
STATEMENT OF FACTS
The applicant, Mr Andrey Andreyevich Miroshnik, is a Russian national, who was born in 1971 and lives in Smolensk. He is represented before the Court by Mr S. Strukov, a lawyer practising in Smolensk.The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 18 April 2016 the police decided to conduct a “test purchase” in respect of the applicant’s son I.M. On the same date he was arrested on suspicion of attempted drug dealing.
On 19 April 2016 I.M. died.
On an unspecified date the applicant asked the authorities to continue the examination of his son’s case to clear his name. He claimed that his son had committed the offence as a result of entrapment by the police and alleged the involvement of an agent provocateur.
On 2 October 2017 the Leninskiy District Court of Smolensk dismissed the applicant’s argument about the police entrapment as unsubstantiated and discontinued the proceedings. In particular, the court noted as follows:
“... the court qualifies I.M.’s actions ... as attempted drug dealing ... , given that he committed wilful unlawful acts with an intent to sell drugs ... . However, he was unable to complete his actions due to circumstances beyond his control. He sold the drugs within the framework of a “test purchase” operation conducted by law‑enforcement and the drugs were seized immediately after the “test purchase”.
Regard being had to the I.M.’s death and the absence of grounds to exonerate him, [the court] discontinues the proceedings.”
The applicant appealed.
On 20 November 2017 the Smolensk Regional Court upheld the decision of 2 October 2017 on appeal.Relevant domestic law and practice
As a general rule, the death of a suspect (defendant) is a ground to discontinue criminal prosecution (Article 24 of the Code of Criminal Procedure of the Russian Federation). However, Ruling no. 16-P of the Constitutional Court of the Russian Federation of 14 July 2011 stipulates that such discontinuation is not possible should the relatives of the deceased object to it. In such a case it is incumbent on the investigator or the court to continue the examination of the case (section 6 of the Ruling). The investigator may abate the investigation on exonerating grounds or transfer the case for the examination by the court. The relatives of the deceased have a right to take part in the proceedings in order to protect, inter alia, the good name and reputation of the deceased. The court is to establish the facts of the case, to give a legal assessment of the facts and to determine the degree of guilt (or innocence) of the deceased. Having examined the merits of the case and regard being had to the particular features of the proceedings in which the defendant is absent, the court may deliver an acquittal judgment or abate the proceedings (ibid.).
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that his son was incited by the police to sell drugs and that the plea of entrapment was not properly examined in the domestic proceedings.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings in the present case? In particular, did the proceedings which ended with the decision of the Smolensk Regional Court on 20 November 2017 concern the determination of the criminal charge against the applicant’s son (compare Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, §§ 273-84, 27 August 2019)?
2. Can the applicant in the present case claim to be a victim of a violation of the Convention, within the meaning of Article 34 (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 97-100, ECHR 2014, and Grădinar v. Moldova, no. 7170/02, §§ 90-104, 8 April 2008)?
3. As regards the test purchases carried out by and undercover agent of the police in I.M.’s case, has there been a fair hearing in the determination of the criminal charges against him, as required by Article 6 § 1 of the Convention (see Veselov and Others v. Russia, nos. 23200/10 and 2 others, 2 October 2012, and Lagutin and Others v. Russia, nos. 6228/09 and 4 others, 24 April 2014)?
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