Communicated on 5 September 2008 and 7 July 2016
THIRD SECTION
Application no. 5721/04
Artur Yevgenyevich YEZDAKOV and Dmitriy Viktorovich GRIGORYEV
against Russia
lodged on 28 December 2003
STATEMENT OF FACTS
The applicants, Mr Artur Yevgenyevich Yezdakov and Mr Dmitriy Viktorovich Grigoryev, are Russian nationals, who were born in 1977 and 1964 respectively and live in Мurmansk.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In October and November 2002 the Ministry of Finance of the Russian Federation and the Murmansk Currency Control Department (“the Town Department”) respectively wrote to the police authorities, asking them to carry out various measures aimed at detecting and preventing offences concerning foreign currency transactions.
In 2003 the applicants became involved in two separate sets of proceedings in connection with the administrative offence of trading in foreign currency without an authorising document (Article 15.25 of the Code of Administrative Offences, “the CAO”).
1. Mr Yezdakov’s case
According to the applicant, having lost his job and being in need of cash, on 16 January 2003 he went to a bank to change some of the savings he had in United States dollars (USD). On his way, he met a man who offered to buy USD 400 (apparently, at an attractive exchange rate). The applicant accepted and exchanged his USD 400 for the man’s 12,880 Russian roubles (RUB). Identifying himself as a police officer, the buyer announced that he had just carried out a “test purchase”. Two attesting witnesses had observed the procedure and subsequently made written statements in this connection.
The applicant was taken to the police station, where a pre-typed arrest record form was filled in. It reads as follows:
“Citizen [the applicant’s name] has been informed of the rights and obligations under Articles 25.1 and 25.5 of the CAO. [the applicant’s signature] ...
I have been informed of the rights and obligations under Articles 25.1, 25.3, 25.4, 25.5, 27.3 of the CAO, including the right to legal assistance [the applicant’s signature]”
The applicant was then taken to the Town Department, where an administrative offence record for an offence under Article 15.25 of the CAO was compiled. There, he made a written statement (объяснения), the exact content of which is unclear. It appears that he admitted that he had been trading in foreign currency at the same place for some time (see the district prosecutor’s letter of 12 March 2003). It is unclear whether the statement resulted from any questioning on the part of the officials.
A public official then compiled an administrative-offence record in respect of the applicant. It appears from the record that the applicant was informed of “his rights and obligations under Article 25.1 of the CAO”, which includes a right to provide explanations and to “use legal assistance”. He was not informed of the right to remain silent.
The attesting witnesses made written statements concerning their participation in the “test purchase”. The exact content of those statements is unclear.
After some two hours there, the applicant left the Town Department.
On 30 January 2003 the applicant requested that a lawyer be appointed to assist him, free of charge, during the examination of the case. On the same day, the North-Western Currency Control Department (“the Regional Department”) dismissed his request, stating that “the CAO did not require such a request to be granted”.
On 3 February 2003 the applicant asked the Town Department to notify him properly about the date and time of the hearing in his case. He also informed the authorities that he would be absent from Murmansk for some time because of a job interview in Saint Petersburg.
On an unspecified date the case was submitted for adjudication to the supervising authority, the Regional Department.
On 4 February 2003 the Town Department sent a letter to the applicant’s address in Murmansk informing him that a hearing would take place on 11 February 2003. The letter was received by the applicant’s brother, who allegedly could not inform him in time.
On 11 February 2003 the Regional Department examined the case-file material (including the administrative offence record, the “test purchase” record, the applicant’s written statement and written statements by the attesting witnesses). The applicant was not present. The Regional Department found him guilty of an offence under Article 15.25 § 1 of the CAO. Referring to section 4 of the Currency Transactions Act, it considered that he had concluded a void transaction.
The Regional Department sentenced the applicant to a fine corresponding to the amount of the transaction in question, that is RUB 12,728.56 (calculated at the exchange rate as of 11 February 2003). According to the applicant, the case was examined without the presence of witnesses. From the text of the decision it transpires that the man who bought the currency from the applicant was a police officer.
The decision of 11 February 2003 was amenable to judicial review or to an appeal before the higher non-judicial authority, the Currency Control Department of the Ministry of Finance of Russia.
On 18 February and 11 March 2003 the applicant requested access to his case file in order to prepare an appeal against the decision of 11 February 2003. In March and April 2003 those requests were refused as unfounded.
In the meantime, on 24 February 2003 the applicant retained a lawyer, Ts., to assist him in seeking a review of the decision of 11 February 2003 and undertook to pay the lawyer RUB 35,254 for his services.
The applicant complained to the district prosecutor that he had been unlawfully arrested on 16 January 2003. The district prosecutor replied by letter of 12 March 2003 that since it had not been opportune to compile an offence record on the spot, the applicant had agreed to go by police car to the police station; that he had admitted being a foreign currency trader; and that the applicable legislation had not been breached in respect of him.
The applicant also sought judicial review of the decision of 11 February 2003. He requested that the court hear three people as witnesses. Apparently, one or more of those people was/were among the “attesting witnesses” mentioned above.
On 11 April 2003 the Oktyabrskiy District Court of Murmansk (“the District Court”) heard the representative of the Town Department, the applicant and his representative, S. The court upheld the decision of 11 February 2003 in substance. In response to the applicant’s argument that he had been unable to attend the hearing on 11 February 2003, the court held that he had been properly notified of the date and that, judging from his conduct, he had wilfully avoided the hearing.
On 30 June 2003 the Murmansk Regional Court (“the Regional Court”) held an oral hearing at which the applicant’s representative, K., and the Department’s representative were heard. The appeal court upheld the judgment of 11 April 2003.
2. Mr Grigoryev’s case
On 24 April 2003 the applicant went to a bank to change USD 10,229, which he wanted to use to buy a flat. Near the bank, he was approached by a man who offered to buy USD 200 from him, citing the lack of a personal passport as an excuse for not buying the currency from the bank. The applicant accepted and then exchanged his USD 200 for the man’s RUB 6,280. Immediately thereafter the man introduced himself as a police officer. It appears that two attesting witnesses were observing the procedure nearby.
The applicant was escorted first to a local police station and then to the Town Department. He refused to sign any documents. It appears that he made a written statement, the exact content of which is unclear. Thereafter he was allowed to leave the Town Department.
On 27 May 2003 the applicant applied for the appointment of a lawyer to assist him, free of charge, during the examination of the case. On the same day, an administrative offence record was compiled. The applicant’s request for free legal assistance was turned down.
On an unspecified date the case was submitted for adjudication to the supervising authority, the Regional Department.
On 28 May 2003 the Regional Department examined the case-file material (including the administrative offence record, the “test purchase” record, the applicant’s written statement and written statements by the attesting witnesses). It found the applicant guilty of the offence of dealing in foreign currency without an appropriate authorising document. He was ordered to pay a fine of RUB 6,280, corresponding to the amount of the transaction in question.
On 2 June 2003 the applicant retained a lawyer, Ts., to assist him in seeking a review of the above-mentioned decision and undertook to pay the lawyer RUB 33,864 for his services.
On 5 June 2003 the applicant sought judicial review of the decision of 28 May 2003. He argued, inter alia, that the police officer had entrapped him in the commission of the offence: he had approached the applicant and made an offer to change dollars for roubles; the applicant would not have committed the offence without the police officer’s proposal.
On 3 July 2003 the District Court heard the representative of the authority, the applicant and his representative, K. The court upheld the decision of 28 May 2003, considering, inter alia, that the CAO did not provide for a possibility to obtain free legal assistance. The court did not respond specifically to the allegation of police entrapment.
On 12 November 2003 the Regional Court upheld the first-instance judgment. It appears that no oral hearing was held – or, at least, that no parties attended. The appeal court confirmed that the CAO did not provide for free legal assistance.
B. Relevant domestic law
1. Investigative techniques
The Operational-Search Activities Act (Federal Law no. 144-FZ of 12 August 1995) provided for overt or covert activities carried out by operational divisions of certain State agencies (section 1 of the Act). Operational-search activities were aimed at detecting, preventing, intercepting and investigating criminal offences, as well as searching for and identifying those responsible for planning or committing them (section 2). Anyone who considered that an agency conducting operational-search activities had acted in breach of his or her rights and freedoms could challenge the actions of that agency before a higher-ranking agency conducting operational-search activities, a prosecutor’s office or a court (section 5). On 24 July 2007 section 5 of the Act was amended to prohibit agencies conducting operational-search activities from directly or indirectly inducing or inciting the commission of offences. A similar amendment was made to section 6 of the Police Act of 2011.
Operational-search activities could be performed when criminal proceedings were pending or information had been obtained by the agencies conducting operational-search activities which indicated that an offence was being planned or had already been committed, or pointed to persons who were planning or committing or had committed an offence, if there was insufficient evidence for a decision to institute criminal proceedings (section 7 of the Operational-Search Activities Act). Test purchases or infiltration by agents of the agencies conducting operational-search activities or individuals assisting them, could be carried out pursuant to an order issued by the head of the agency conducting operational-search activities (section 8).
Information gathered as a result of operational-search activities could be used for the preparation and conduct of the investigation and court proceedings and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence (section 11).
In its decision no. 58-O of 6 March 2001 the Constitutional Court held in substance that the absence of rules and procedures allowing a distinction to be drawn between legitimate use of investigative techniques and fabrication of criminal activity was compensated for by the following safeguards: the operational and search activities were to be confined to those listed in the Act (section 2) and were only acceptable on grounds listed in section 7 of the Act. The authorities involved in such activities were to respect constitutional rights and freedoms; the Criminal Code provided sanctions for manifestly wrongful prosecution and fabrication of evidence.
2. Legal assistance under the Code of Administrative Offences
Article 25.1 of the CAO provides that a person accused of an administrative offence has the following procedural rights: to lodge motions, to give explanations, to adduce evidence, to use legal assistance; and to be present during the examination of the case. The case can be examined in his or her absence after proper notification of the date and time of the hearing.
Article 25.5 of the CAO provides that a defender (a lawyer or other person) can take part in “pending” administrative offence proceedings from the moment an administrative offence record is compiled or from the time of administrative arrest (административное задержание) if such a measure is applied.
An administrative offence case is considered “pending” from the time at which a first record (for instance, an arrest record) or an administrative offence record is compiled (Article 28.1 of the CAO).
The time of “arrest”, the duration of which is normally three hours, is counted from the moment the person is escorted (доставление) to a police station (Articles 27.3 and 27.5 of the CAO).
It appears that the CAO makes no provision for the appointment of a lawyer, free of charge, for the purpose of non-judicial or judicial proceedings concerning an administrative offence.
Article 24.7 of the CAO provides that certain expenses (such as the monies payable to witnesses, specialists, experts or interpreters) are paid by the State.
3. Offence of currency exchange without an authorising document
Article 15.25 § 1 of the CAO provided at the material time that currency transactions without an authorising document, where such authorisation was mandatory, were punishable by a fine ranging from one tenth of the amount of the unlawful transaction to its entire amount. In August 2004 Article 15.25 § 1 was amended to make it an offence to carry out currency transactions “that [were] prohibited by the legislation concerning currency regulation”. This Article was again amended in 2012, making it an offence to carry out currency transactions “that [were] prohibited by the legislation concerning currency regulation or that [were] carried out in breach of this legislation, for instance purchase and sale of currency ... outside the designated banks”.
Section 4 of the Currency Transactions Act of 1992 provided at the time that the purchase and sale of currency was to be carried out through designated banks; the purchase and sale of currency outside the designated banks was prohibited.
COMPLAINTS
The applicants complain under Article 6 of the Convention that they did not receive a fair trial because they were convicted following police entrapment. They also allege that the non-judicial authorities and subsequently the courts refused to call defence witnesses or the people who had testified against them.
FURTHER QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of the administrative offence charges against them (see Lagutin and Others v. Russia, nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, §§ 89‑101, 24 April 2014)? In particular, did the Code of Administrative Offences, other applicable legislation (for instance, the Operational-Search Activities Act) and the relevant judicial practice provide at the time any basis for a “police entrapment” defence? Did the applicants have an adequate opportunity to plead it and a reasonable prospect of success? Did the non-judicial authority and then the courts examine the related arguments in a proper manner?
2. Having regard to Article 38 of the Convention, the respondent Government are invited to submit copies of the administrative offence files in respect of the applicants and the judicial review files.
Full & Egal Universal Law Academy