CASE OF KHASANOV AND OTHERS v. RUSSIA

 
 
 
THIRD SECTION
 
 
 
 
CASE OF KHASANOV AND OTHERS v. RUSSIA
(Applications nos. 28634/11 and 5 others -
see appended list)
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
27 June 2019
 
 
 
 
 
This judgment is final but it may be subject to editorial revision.
 

In the case of Khasanov and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 6 June 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2.  Notice of the applications was given to the Russian Government (“the Government”).
THE FACTS
3.  The list of applicants and the relevant details of the applications are set out in the appended table.
4.  The applicants complained that they had been unfairly convicted of drug offences following entrapment by State agents.
THE LAW
I.  JOINDER OF THE APPLICATIONS
5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
6.  The applicants complained that they had been unfairly convicted of drug offences which they had been incited by State agents to commit and that their plea of entrapment had not been properly examined in the domestic proceedings. They relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
7.  The Court reiterates that absence in the national legal system of a clear and foreseeable procedure for authorising test purchases of drugs remains a structural problem which exposes applicants to an arbitrary action by the State agents and prevents the domestic courts from conducting an effective judicial review of their entrapment pleas (see Veselov and Others v. Russia, nos. 23200/10 and 2 others, § 126, 2 October 2012).
8.  The Court has consistently found a violation of Article 6 § 1 of the Convention on account of the deficient existing procedure for authorisation and administration of test purchases of drugs in the respondent State and the domestic courts’ failure to adequately address the applicant’s plea of entrapment by taking necessary steps to uncover the truth and to eradicate the doubts as to whether the applicant had committed the offence as a result of incitement by an agent provocateur (see Veselov and Others, cited above, §§ 126‑28; Lagutin and Others v. Russia, nos. 6228/09 and 4 others, §§ 124‑25, 24 April 2014; Lebedev and Others v. Russia, nos. 2500/07 and 4 others, §§ 12‑16, 30 April 2015; and Yeremtsov and Others v. Russia, nos. 20696/06 and 4 others, §§ 17‑21, 27 November 2014).
9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the criminal proceedings against the applicants were incompatible with a notion of a fair trial.
10.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
11.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
12.  The Court reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be a retrial or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV). Given the Court’s findings in Kumitskiy and Others v. Russia (nos. 66215/12 and 4 others, § 17, 10 July 2018), the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants in the present cases (see also Zadumov v. Russia, no. 2257/12, §§ 80-81, 12 December 2017).
13.  The Court further reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the above criteria, the Court considers reasonable to award the applicants in application no. 20574/14, jointly, the sum indicated in the appended table. As for the remaining applications, the Court notes that the applicants have submitted no documents to support their claims. It therefore rejects these claims as unsubstantiated.
14.  The Court finally considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Decides to join the applications;
 
2.  Declares the applications admissible;
 
3.  Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning entrapment by State agents;
 
4.  Holds
(a)  that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;
(b) that the respondent State is to pay the applicants in application no. 20574/14, jointly, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(c)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
 
5.  Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 27 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
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’s name
Date of birth
 
Representative’s name and location
Test purchase date
Type of drugs
Specific grievances
Final domestic judgment (date, appeal court)
Amount awarded for costs and expenses per application
(in euros)[i]   
28634/11
19/03/2011
Timur Nailevich
Khasanov
06/01/1984
 
 
11/05/2010
JWH-018
lack of incriminating information,
fellow drug user
29/10/2010
Supreme Court of the Tatarstan Republic
-   
46/14
27/11/2013
Roman Andreyevich Chebotayev
06/05/1995
Khrunova Irina Vladimirovna
Kazan
04/01/2012
smoking mixture
anonymous/unverified tip, fellow drug user, repeated calls
03/06/2013
Volgograd Regional Court
-   
20574/14
05/03/2014
Viktoriya Andreyevna Shatokhina
23/03/1993
 
Mikhail Vladimirovich Pavlenko
19/08/1988
Anufriyenko Aleksey Aleksandrovich
Moscow
25/01/2013
amphetamine
anonymous/unverified tip, lack of incriminating information, pressure to sell, repeated calls, fellow drug user
11/12/2013
Moscow City Court
1,000   
25727/15
09/08/2015
Nikolay Viktorovich
Golubev
06/08/1973
 
 
12/06/2014
heroin 0,064 g
fellow drug user, lack of incriminating information, pressure to sell
18/03/2015
Novosibirsk Regional Court
-   
49908/15
25/09/2015
Yevgeniy Aleksandrovich Meleshko
27/06/1995
Dedyurin Dmitriy Alekseyevich
Orel
29/03/2014
methadone
fellow drug user, anonymous/unverified tip,
lack of incriminating information
27/03/15
Bryansk Regional Court
-   
24471/17
28/02/2017
Darya Leonidovna
Arinina
31/12/1986
Anisimov Viktor Petrovich
St Petersburg
06/03/2013
amphetamine
 
12/04/2015
amphetamine
repeated calls, anonymous/unverified tip,
lack of incriminating information
 
repeated calls, pressure to sell,
lack of incriminating information
30/08/2016
St Petersburg City Court
-
 
[i].  Plus any tax that may be chargeable to the applicants.

Full & Egal Universal Law Academy