THIRD SECTION
DECISION
Application no. 16971/09
Yevgeniy Aleksandrovich VERBNYAK against Russia
and 2 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 22 March 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,
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 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 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. The case of the applicant, Mr Fursov, (application no. 75566/10), where the first conviction was quashed by a supervisory court and was followed by a more thorough review by the trial court of the applicant’s version of events is an example of the court’s comprehensive approach. The Court is also mindful that Mr Fursov did not challenge that first-instance judgment on appeal (for details see the appended table).
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 12 April 2018.
Liv TigerstedtAlena Poláčková
Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 6 § 1 of the Convention
(entrapment by State agents)
No.
Application no.
Date of introduction
Applicant name
Date of birth
Test purchase date
Type of drugs
Specific grievances
Final domestic judgment (appeal court, date)
16971/09
17/12/2008
Yevgeniy Aleksandrovich Verbnyak
03/06/1982
marijuana
30/10/2007
marijuana
04/12/2007
Kaluga Regional Court,
14/11/2008
58395/10
02/09/2010
Nikolay Anatolyevich Nikolayev
20/12/1982
heroin
28/05/2009
heroin
01/06/2009
fellow drug user
fellow drug user
Ivanovo Regional Court,
15/03/2010
75566/10
28/11/2010
Maksim Gennadyevich Fursov
24/05/1982
marijuana
26/10/2009
marijuana
30/10/2009
repeated calls
repeated calls
Promyshlennyy District Court of the Stavropol Region, 14/12/2015
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