THIRD SECTION
DECISION
Application no. 43709/12
Anton Vladimirovich PROSTOTIN against Russia
and 8 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 13 September 2018 as a Committee composed of:
Alena Poláčková, 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 in applications nos. 43709/12, 53781/17 and 56098/17,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The list of applicants is set out in the appended table.
The applicants’ complaints under Article 6 § 1 of the Convention 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 further finds it factually inconsistent for the applicants to deny that they committed a crime or that they merely assisted someone with a purchase and to simultaneously complain that she had been entrapped into so doing. In the Court’s view, the defense of entrapment necessarily presupposes that the accused admits that the act charged was committed but claims that it happened due to unlawful inducement by the police (see Koromchakova v. Russia (dec.), no. 19185/05, 13 December 2016).
Tuning to the cases listed in the appended table, the Court notes that the applicants’ plea of incitement was adequately addressed by the Russian courts, which took the necessary steps to uncover the truth and to eradicate the doubts as to whether the applicants had committed the offence as a result of incitement by an agent provocateur. Their conclusion that there had been no entrapment was based on a reasonable assessment of evidence that was relevant and sufficient. The Court also does not lose sight of the fact that during the criminal proceedings before the Russian courts the applicants either denied the facts imputed to them and/or contested the legal classification of their acts or directly confirmed their involvement in the drug sale, having changed their versions of events. Nevertheless, despite the unclearly formulated incitement defence of the applicants 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), the Russian courts took all possible steps to verify each version to be certain that the acts imputed to the applicants did not result from unlawful actions on the part of investigative authorities.
Having regard to the scope of the judicial review of the applicants’ plea of incitement, the Court finds that the applicants’ complaint 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 4 October 2018.
Liv TigerstedtAlena Poláčková
Acting Deputy RegistrarPresident
APPENDIX
No.
Application no.
Date of introduction
Applicant’s name
Date of birth
Representative name and location
Test purchase date
Type of drugs
Specific grievances
Final domestic judgment
(appeal court, date)
43709/12
06/06/2012
Anton Vladimirovich Prostotin
01/01/1991
Ovchinnikova Larisa Mikhaylovna
Vladivostok
25/09/2009
heroine
lack of incriminating information
Primorye Regional Court,
21/02/2012
31610/13
15/03/2013
Yevgeniy Nikolayevich Kichigin
18/01/1989
14/02/2012
hashish
anonymous/unverified tip, undercover policeman
Ulyanovsk Regional Court, 19/09/2012
41161/13
17/05/2013
Igor Petrovich Negodyayev
13/10/1980
Mikhaylina Nadezhda Mikhaylovna
Bor
21/01/2011
heroin
anonymous/unverified tip, undercover policeman
Nizhniy Novgorod Regional Court, 19/08/2013
20200/14
27/02/2014
Aleksandr Mikhaylovich Drobyshev
15/05/1992
Khrunova Irina Vladimirovna
Kazan
09/07/2011
hashish
anonymous/unverified tip, undercover policeman
Astrakhan Regional Court, 29/08/2013
63788/16
17/10/2016
Fedor Alekseyevich Kuntsov
04/06/1993
23/07/2015
spice type (synthetic marijuana type)
second test purchase
Kirov Regional Court,
19/04/2016
43241/17
01/06/2017
Aleksandr Ivanovich Mazura
06/07/1992
Merkulov Aleksey Valeryevich
Orel
10/02/2016
marijuana
fellow drug user
Moscow Regional Court,
16/02/2017
53781/17
18/07/2017
Sergey Aleksandrovich Antonov
09/12/1985
Sivchenko Vadim Tikhonovich
Korolev
13/05/2016
amphetamine
fellow drug user
Moscow Regional Court,
26/01/2017
56098/17
26/07/2017
Galina Pavlovna Kazankova
12/12/1966
Tsvingli Vladimir Igorevich
Moskou
04/04/2014
Heroin
fellow drug user, anonymous/unverified tip
the Moscow City Court,
29/03/2017
78245/17
02/11/2017
Aleksandr Yevgenyevich Koshelev
18/01/1972
Balakir Yelena Aleksandrovna
Volgograd
28/11/2015
marijuana
lack of incriminating information
Volgograd Regional Court, 02/05/2017
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