Communicated on 7 July 2015
FIRST SECTION
Application no. 48932/08
Mikhail Kazimirovich VLADIMIROV against Russia
and 2 other applications
(see list appended)
STATEMENT OF FACTS
A. Application no. 48932/08
1. Detention on remand
1. On 15 August 2007 the applicant was charged with illegal acquisition and sale of drugs in large quantities.
2. On 16 August 2007 the Central District Court of Tver remanded the applicant in custody.
3. The applicant’s detention on remand was not based on relevant and sufficient reasons and the court did not address specific facts of the applicant’s case or consider alternative preventive measures. The gravity of the charges was cited as the main reason for detention in orders of 16 August 2007, 12 October 2007, 14 November 2007 and 5 December 2007. The court also noted that the applicant had been unemployed and had no financial means and as such, he could abscond and also intimidate witnesses. The court did not verify the need and grounds for continuing detention and extended the applicant’s detention on remand reciting the contents of earlier orders.
2. Entrapment by police
4. On 5 May 2008 the Central District Court of Tver examined the applicant’s case and convicted the applicant of offences he was charged with. The principal evidence against him derived from test purchase conducted on 14 August 2007 in accordance with Section 6 of the Operational-Search Activities Act.
5. At his trial the applicant claimed that he had committed the offence in question as a result of entrapment by the police. He alleged the involvement of agent provocateurs but his objections were dismissed.
6. On 15 July 2008 the Tver Regional Court upheld the judgment of the first-instance court.
3. Anonymous witness
7. The first-instance court also admitted into evidence the pre-trial testimony of undercover agent P. who bought the drugs from the applicant and who testified anonymously against the applicant during the trial.
B. Application no. 6327/09
1. Detention on remand
8. On 14 June 2007 the Leninskiy District Court of Magnitogorsk remanded the applicant in custody on charges of illegal sale of drug. Extensions were granted without verifying the need and grounds for continuing detention. The gravity of the charges was cited as the main reason for continuing detention in extension orders of 17 July 2008, 20 August 2008, 25 August 2008, 24 September 2008, 6 October 2008 and 21 October 2008. The court also noted that if released, the applicant may continue his criminal activities since he had prior outstanding convictions.
2. Entrapment by police
9. On 1 November 2008 the Ordzhonikidze District Court of Magnitogorsk examined the applicant’s case and convicted the applicant of offences he was charged with. The principal evidence against him derived from test purchase conducted on 13 June 2007 in accordance with Section 6 of the Operational-Search Activities Act.
10. At his trial the applicant claimed that he committed the offence in question as a result of entrapment by the police. He alleged the involvement of agent provocateurs but his objections were dismissed.
11. On 13 April 2009 the Chelyabinsk Regional Court upheld the judgment of the first-instance court.
C. Application no. 21589/10
1. Conditions of detention in a remand prison
12. Between 3 June 2009 and early March 2010 the applicant was held in remand prison IZ-77/2 in Moscow in cell 304 in the beginning and in cell 100 during the last three months of his detention. The prison was overcrowded. In particular, the applicant claimed that he had been afforded less than 3 sq. m of personal space throughout the eight-month period of his confinement. In addition, the applicant complained about the following aspects of his detention in remand prison: (i) lack of ventilation; (ii) lack of natural light; (iii) no partition between the toilets and the rest of the cells; (iv) infestation of cells with parasites.
2. Detention on remand
13. On 3 June 2009 the applicant was charged with illegal acquisition and sale of drugs in large quantities.
14. On 4 June 2009 the Khamovnicheskiy District Court of Moscow ordered the applicant’s detention on remand. The applicant’s detention on remand was not based on relevant and sufficient reasons and the court did not address specific facts of the applicant’s case or consider alternative preventive measures. The gravity of the charges was cited as the main reason for detention in order of 4 June 2009. The court also noted that the applicant had had no permanent registered address and referred in general terms to the risks of absconding and intimidation of witnesses as grounds for continuing detention.
3. Entrapment by police
15. On 25 December 2009 the Khamovnicheskiy District Court of Moscow examined the applicant’s case and convicted the applicant of offences he was charged with. The principal evidence against him derived from test purchase conducted on 2 June 2009 in accordance with Section 6 of the Operational-Search Activities Act.
16. At his trial the applicant claimed that he had committed the offence in question as a result of entrapment by the police. He alleged the involvement of agent provocateurs but his objections were dismissed.
17. On 3 February 2010 the Moscow City Court upheld the judgment of the first-instance court.
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that they have been convicted of drug offences which they had committed only because they had been incited to do so by agent provocateur.
The applicants also made the complaints indicated below:
Application no. 48932/08. The applicant complains under Article 5 §§ 1 (c) and 3 of the Convention that his detention on remand from 16 August 2007 to 5 May 2008 was unlawful. The applicant also complains under Article 6 §§ 1 and 3 (d) that he was not able to examine effectively anonymous witness testifying against him.
Application no. 6327/09. The applicant complains under Article 5 §§ 1 (c) and 3 of the Convention that his detention on remand from 14 June 2007 to 1 November 2008 was unlawful.
Application no. 21589/10. The applicant complains under Article 3 about conditions of detention on remand and after conviction. The applicant also complains under Article 5 §§ 1 (c) and 3 that his detention on remand from 3 June 2009 to 25 December 2009 was unlawful.
common question
Having regard to the judgment in the case Lagutin and Others v. Russia (nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, §§ 89‑101, 24 April 2014) did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention?
CASE SPECIFIC QUESTIONS
21589/10
1. Having regard to the judgment in the case Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012, were the conditions of the applicant’s detention on remand compatible with Article 3 of the Convention?
48932/08, 6327/09, 21589/10
2. Was the applicants’ detention on remand in accordance with a procedure prescribed by law and compatible with the requirements of Article 5 § 1 (c) of the Convention?
3. Has the length of the applicants’ detention pending trial exceeded the “reasonable time” requirement in Article 5 § 3 of the Convention? Were the grounds relied on by the domestic courts for the applicant’ continued detention “relevant” and “sufficient” (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Khudoyorov v. Russia, no. 6847/02, 8 November 2005)?
48932/08
4. Having regard to the Court’s judgment in the case Al-Khawaja and Tahery v. the United Kingdom [GC] (nos. 26766/05 and 22228/06, ECHR 2011) did the applicant have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? Specifically, was the applicant able to examine witness whose identity was kept secret and who testified against him, as required by Article 6 § 3 (d) of the Convention?
5. Were there good reasons to keep secret the identity of witness that testified against the applicant during trial (see Pesukic v. Switzerland, no. 25088/07, § 45, 6 December 2012 and Scholer v. Germany, no. 14212/10, §§ 50-51, 18 December 2014)?
(a) If yes, what were these reasons and were these reasons duly reviewed by the domestic courts?
(b) What were the grounds in the Russian law and practice on which the national courts relied in keeping secret the identity of this witness?
6. Was the applicant’s’ conviction based solely or to a decisive degree on the statements of the witness whose identity was kept secret?
7. Were there strong procedural safeguards put in place by the Russian law, practice, or specific arrangements in the applicant’s case, which would counterbalance the use of this witness’ testimony?
8. Was the overall fairness of the proceedings ensured by the domestic courts as prescribed by Article 6 § 1 of the Convention? In addressing this issue the parties are invited to address each of the following questions:
(a) Did the competent national courts assess the impact of keeping secret the identity of witness on the overall fairness of the proceedings?
(b) Did the national courts ensure the overall fairness of the proceedings as prescribed by Article 6 § 1 of the Convention by reflecting in the judgments, where appropriate, the reasons for keeping the witness’ identity secret?
(c) Having regard to the right “to examine or have examined witnesses against him” as enshrined in Article 6 § 3 (d), was the applicant able to effectively examine the witness, whose identity was kept secret, before or during the trial?
(d) Were there any restrictions imposed on the ability of the defence to put questions to this witness? If yes, were these restrictions compatible with the rights of the applicant under Article 6 of the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
Date of birth
Place of residence
Represented by
48932/08
11/09/2008
Mikhail Kazimirovich VLADIMIROV
04/09/1980
Tver
6327/09 (*)
14/01/2009
Vyacheslav Aleksandrovich KONOPLENKO
22/08/1971
Magnitogorsk
21589/10
06/04/2010
Anton Ilyich PROKHOROV
19/07/1986
Aleksandrov
Natalia POLUKHTIN
Full & Egal Universal Law Academy