FIRST SECTION
Application no. 42616/08
Vitaliy Petrovich SAZONOV
against Russia
lodged on 24 July 2008
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Vitaliy Petrovich Sazonov, is a Russian national, who was born in 1972 and lives in Chernyakhovsk, the Kaliningrad Region. He is represented before the Court by Mr S. Tarasyuk, a lawyer practising in Kaliningrad.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has been convicted in criminal proceedings of bribegiving. The principal evidence against him derived from an operative experiment conducted in accordance with Section 6 of the Operational‑Search Activities Act.
At his trial the applicant claimed that the offence in question was committed as a result of entrapment by the authorities. He alleged the involvement of an agent provocateur. These objections were dismissed. According to the applicant, a key witness, Mr K. who was summoned to the court to give evidence and appeared there was forcefully removed from the hearing room by the police before he could testify.
The first-instance judgment was held by the Leningradskiy District Court of Kaliningrad on 11 July 2008. It was upheld on appeal by the Kaliningrad Regional Court on 23 December 2008.
COMPLAINTS
The applicant complains that he had been unfairly convicted of a criminal offence incited by the police and that his plea of entrapment had not been properly examined in the domestic proceedings, in violation of Article 6 of the Convention. He also complains that a defence witnesses, Mr K., have not been examined at the hearing. These complaints fall to be examined under Article 6 §§ 1 and 3 (d) of the Convention.
QUESTIONS
1. Did the undercover technique used to investigate the offence in the present case amount to an entrapment (see Ramanauskas v. Lithuania ([GC], no. 74420/01, § 51, ECHR 2008-...)?
2. Before the applicant was approached by the undercover agent (the police agent, collaborator, informant or other person acting on the authorities’ instructions in the covert operation concerned), did the investigative authorities possess preliminary information concerning the applicant’s pre-existing criminal intent? Did this information come from a verifiable source unconnected with the individuals involved in the undercover operation (see Vanyan v. Russia, no. 53203/99, § 49, 15 December 2005, and Khudobin v. Russia, no. 59696/00, § 134, ECHR 2006‑XII (extracts))?
3. Did the undercover agent exert such an influence on the applicant as to incite the commission of an offence that would otherwise not have been committed? Was the applicant subjected to any pressure, either through prompting, persuasion, pleading compassion or otherwise, on the part of the undercover agent to commit the offence (see Malininas v. Lithuania, no. 10071/04, § 37, 1 July 2008, Vanyan, cited above, §§ 11 and 49 and Ramanauskas, cited above, § 67)?
4. Did the authorities have good reasons for mounting the covert operation (see Ramanauskas, cited above, §§ 63 and 64, and Malininas, cited above, § 36)? What other investigative activities were carried out as regards the applicant prior to the covert operation?
5. Was the procedure authorising the covert operation clear and foreseeable (Vanyan, cited above, §§ 46 and 47, and Khudobin, cited above, § 135)? Did the decision authorising it refer to the information as to the reasons for and purposes of the planned covert operation?
6. Was the covert operation carried out in the present case subject to any judicial control or other independent supervision (see Milinienė v. Lithuania, no. 74355/01, § 39, 24 June 2008)?
7. Was the applicant afforded adequate procedural safeguards enabling him to raise a complaint about entrapment before the national courts (see Ramanauskas, cited above, §§ 69-70)?
8. Was the issue of entrapment examined in an adversarial, thorough and comprehensive manner? Was all relevant information, particularly regarding the purported suspicions about the applicant’s previous conduct, put openly before the trial court or tested in an adversarial manner (see V. v. Finland, §§ 76 et seq., and Malininas, § 36, both cited above; and Bulfinsky v. Romania, no. 28823/04, 1 June 2010)?
9. Did the courts have access to the full file relating to the operational‑search activities against the applicant prior to the covert operation? What other material did the courts examine to answer the plea of entrapment?
10. Did the courts assess the reasons why the operation had been mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected? Was the applicant given an opportunity to state his case on each of these points (see Ramanauskas, cited above, § 71)?
11. Were the undercover agents and other witnesses who could testify on the issue of incitement heard in court and cross-examined by the defence (see Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238; Sequeira v. Portugal (dec.), no. 73557/01, ECHR 2003-VI; Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004-IV, Bulfinsky, § 45, cited above; and Kuzmickaja v. Lithuania (dec.), no. 27968/03, 10 June 2008)?
12. Having regard to the above, did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?
13. Was the applicant able to examine witnesses against him and to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention?
14. The Government are requested to provide a full copy of the court records of the first-instance hearing.
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