THIRD SECTION
DECISION
Application no. 43475/09
Dmitriy Eduardovich PANOV against Russia
and 6 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 18 January 2018 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, 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 and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The list of applicants and the relevant details of the applications are set out in the appended table.
The applicants’ complaints concerning the entrapment by State agents were communicated to the Russian Government (“the Government”).
THE LAW
A. Joinder 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.
B. Complaints under Article 6 § 1 of the Convention
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 ... 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 observes that during the criminal proceedings before the Russian courts the applicants either denied the facts imputed to them (Mr Panov, application no. 43475/09, Mr Myakshin, application no. 41056/10, and Mr Shchipanov, application no. 53940/15), or contested the legal classification of their acts (Mr Idrisov, application no. 2430/11, and Mr Alekhin, application no. 52289/15) or complained that their ongoing criminal activity had not been suppressed by the police (Mr Dzhandzhgava, application no. 22965/11).
It follows that the incitement defence of the applicants listed in the previous paragraph was not formulated clearly and in good time 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; and Trifontsov v. Russia (dec.), no. 12025/02, 9 October 2012). Accordingly, these applications brought before the Court must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
As regards Ms Kryutchenko (application no. 61148/09), the Court observes that on 25 September 2015 the Presidium of the Primorskiy Regional Court quashed her conviction in respect of two counts of drug sale, having expressly acknowledged that the relevant test purchases had been unlawful. It follows that the applicant can no longer be regarded as a “victim” in respect of this part of the complaint which is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
As to the remainder of her complaint, concerning the first count of drug sale, the Court notes that the applicant’s plea of incitement was adequately addressed by the Presidium of the Primorskiy Regional Court, which took the necessary steps to uncover the truth and to eradicate the doubts as to whether the applicant had committed the offence as a result of incitement by an agent provocateur. Its conclusion that there had been no entrapment was based on a reasonable assessment of evidence that was relevant and sufficient. Having regard to the scope of the judicial review of the applicant’s plea of incitement, the Court finds that Ms Kryutchenko’s complaint in this part is 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).
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 8 February 2018.
Liv TigerstedtLuis López Guerra
Acting Deputy RegistrarPresident
APPENDIX
No.
Application no.
Date of introduction
Applicant name
Date of birth
Representative name and location
Final domestic judgment (appeal court, date)
43475/09
25/07/2009
Dmitriy Eduardovich Panov
02/05/1978
The Krasnoyarsk Region Court,
19 March 2013
61148/09
26/10/2009
Anna Ilyinichna Kryutchenko
04/01/1984
Pugacheva Lada Leonidovna
Vladivostok
Cassation appeal, Primorskiy Regional Court,
7 September 2009
Presidium of the Primorskiy Regional Court
25 September 2015
41056/10
21/06/2010
Aleksey Georgiyevich Myakshin
14/06/1976
Sivokhin Lev Aleksandrovich
Novosibirsk
Novosibirsk Regional Court
5 May 2010
2430/11
30/10/2010
Aleksey Ismailovich Idrisov
04/07/1983
Shukhardin Valeriy Vladimirovich
Moscow
Supreme court of the Tatarstan Republic,
1 June 2010
22965/11
23/03/2011
Temur Zamirovich Dzhandzhgava
11/03/1978
Penza Regional Court,
19 January 2011
52289/15
14/10/2015
Artem Alekseyevich Alekhin
18/11/1994
Stavropol Regional Court,
29/04/2015
53940/15
22/09/2015
Platon Vyacheslavovich Shchipanov
07/06/1994
Moscow City Court
29 April 2015
Full & Egal Universal Law Academy