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FIRST
SECTION
CASE OF BANNIKOVA v. RUSSIA
(Application
no. 18757/06)
JUDGMENT
STRASBOURG
4 November
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In the case of Bannikova v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 14 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18757/06) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Natalya Leonidovna
Bannikova (“the applicant”), on 25 April 2006.
- The
applicant was represented by Ms S.V. Solnechnaya, a lawyer practising
in Kursk. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged that she had been convicted of an offence incited
by the police. She further complained that certain evidence had not
been disclosed at the trial.
- On
31 August 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Kursk.
- In the period between 23 and 27 January 2005 the
applicant, in a series of telephone conversations with S., agreed
that he would supply her with cannabis which she would then sell.
These telephone conversations were recorded by the Federal Security
Service (“FSB”).
- On 28 January 2005 S. brought the cannabis to the
applicant. She mixed it with cannabis she already had at home and
packed it into three separate plastic bags, then wrapped them
together in one parcel.
- On the same day the acting chief of the Kursk Regional
Department of the FSB authorised an undercover operation in the form
of a test purchase under sections 7 and 8 of the Operational-Search
Activities Act of 12 August 1995 (no. 144-FZ). On the following
day an undercover FSB agent, B., acting as a buyer, met the applicant
and purchased 4,408 g of cannabis from her. Banknotes marked with a
special substance were used for the purchase. The FSB also made a
video and audio recording of the test purchase. After the transaction
the applicant was arrested and the marked money was found on her. Her
home was searched afterwards, and there she handed in another bag of
cannabis weighing 28.6 g.
- On
24 November 2005 the Leninskiy District Court of Kursk examined the
case. The applicant pleaded guilty of having assisted B. in the
acquisition of cannabis, but claimed that she had been induced by B.
to commit the offence and that she would not have committed it
without his intervention.
- The
applicant submitted at the trial that she had a close relationship
with S. On one occasion in September 2004 he had left a bag
containing dry herb at her home. She had then shown the substance to
a neighbour who she knew was a drug addict and he had recognised it
as cannabis. A few days later she had been approached by a certain
Vladimir, previously unknown to her, who had said that he knew that
she had “stuff” and that he could arrange a large-scale
deal (“200 cups”) with a customer he knew. She had
mentioned this offer to S., who had told her that he could pick up
the requisite amount and asked her to find out the price. According
to the applicant, at some stage Vladimir had started calling her,
harassing her into selling cannabis and making threats should she
refuse to do so. She had called S. several times before 28 January
2005, when he had finally brought the cannabis to her. On 29 January
2005 she had received a phone call from the “customer”
(the undercover agent B.) and they had arranged for the sale.
- S.
testified at the trial that the applicant had called him in October
or November 2004 and suggested a deal whereby he would supply her
with a “large consignment” of cannabis which she would
then sell. In November 2004 he had picked up some wild marijuana
plants and dried them in his attic. On 23 or 24 January 2005 the
applicant had called him, asking whether he had prepared the
consignment, and said that she had customers waiting. They had
decided to sell the cannabis at 300 roubles per cup; according to S.,
the price was suggested by the applicant. S. also testified that the
applicant had told him that she had received threats pressuring her
into selling the cannabis.
- Other
evidence examined by the court included:
– witness
testimonies by B., the undercover agent, and K., the FSB agent who
took part in the test purchase, on the events of 29 January 2005: the
details of the test purchase, the applicant’s arrest and the
ensuing investigative measures;
– witness
testimonies by Kr. and Kh., the attesting witnesses, concerning the
applicant’s arrest on 29 January 2005 and the inspection of the
marking agent found on her hands and banknotes;
– the
FSB reports relating to the test purchase, the search and the objects
seized;
– forensic
evidence and reports on the inspection of the seized substance; these
confirmed that the bag contained 4,408 g of cannabis, an amount
corresponding to 2,204 average doses of cannabis; the substance
seized at the applicant’s home was 28.8 g of cannabis;
– the
transcripts and the related reports on the telephone conversations
between the applicant and S. in which they had discussed the details
of the planned sale;
– witness
testimonies by the applicant’s mother that the applicant had
received threats pressuring her into selling drugs and that she had
continued to receive calls and threats after her arrest; and
– witness
testimonies by the police officers who had received a complaint from
the applicant’s mother concerning the harassment by telephone.
- On
the basis of the above evidence, the court found the applicant guilty
of having sold cannabis to B. on 29 January 2005. As regards the
alleged incitement, the court considered that S.’s testimonies
concerning the threats received by the applicant were an attempt to
help her and decided that there was insufficient evidence of any
threats or pressure on the applicant to sell drugs. The court
convicted the applicant on a conspiracy charge involving plans to
sell a particularly large consignment of narcotic drugs under Article
228.1 § 3 (статья
228.1 ч 3 «г»)
of the Criminal Code and sentenced her to four years’
imprisonment. The court relied on the applicant’s partial
confession, oral testimonies by the FSB officers who had conducted
the test purchase and by attesting witnesses, forensic evidence and
reports on the inspection of the seized substance. Her accomplice S.
was also convicted of the same offence.
- The
applicant appealed, relying, inter alia, on the decisive role
of the incitement in her committing the crime and on her inability to
access the evidence from the investigation. She alleged, in
particular, that there existed recordings of her telephone
conversations with the FSB agents prior to the test purchase and
asked for T., the FSB agent supposedly involved in the telephone
tapping, to be called as a witness. She also complained that the
court had not examined the video and audio recording of the test
purchase.
- On
24 January 2006 the Kursk Regional Court dismissed the applicant’s
appeal. The court rejected the applicant’s argument concerning
the incitement by State agents on the grounds that her participation
in the drug sale on 29 January 2005 had been established on the basis
of multiple items of evidence and was not denied by her. The appeal
court upheld the firstinstance judgment, holding, in particular:
“As regards the arguments [contained in the
applicant’s appeal] concerning the unfounded dismissal of [her]
request to obtain the audio recordings of the telephone conversations
between [her] and the FSB agents, and to cross-examine the FSB agent
[T.] on that point, the case file contains no proof that any such
recordings have been made under a procedure established by law.
As regards the arguments [contained in the applicant’s
appeal] concerning the unfounded dismissal of [her] request to obtain
the video and audio recordings of the test purchase of the drugs by
the FSB agents, it is not necessary to examine them since [the
applicant] accepted in her pleadings that she had sold the drugs
during such a test purchase, and her account of the circumstances is
corroborated by other evidence and facts established by the court.
In particular, it follows from the transcripts of the
[applicant’s] telephone conversations with [S.] that during
these conversations they discussed occasions of previous sales of
narcotic drugs, the remaining unsold stock of narcotic drugs, the
emergence of new customers and the prospects of carrying out another
sale together ... S. was conveying information on prices for narcotic
drugs”.
II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL
LAW
A. Criminal liability for drug trafficking
- Article
228.1 of the Criminal Code (as in force at the material time)
provided that the unlawful sale of narcotic drugs or psychotropic,
strong or toxic substances carried a sentence of four to eight years’
imprisonment; the same offence involving a large quantity of drugs or
committed by a group of persons acting in conspiracy carried a
sentence of up to twelve years’ imprisonment; the same offence
involving a particularly large quantity of drugs carried a sentence
of up to twenty years’ imprisonment (Article 228.1 § 3
(d)).
- On 15 June 2006 the Plenary Supreme Court of the
Russian Federation adopted guidelines (Ruling No. 14) on
jurisprudence in criminal cases involving narcotic drugs or
psychotropic, strong or toxic substances. The Plenary ruled, in
particular, that any sale of such substances, if carried out in
connection with a test purchase under the Operational-Search
Activities Act, should carry charges of attempted sale (Article 30 §
3 in conjunction with Article 228.1 of the Criminal Code). It also
set out the following conditions on which the results of the test
purchase could be admitted as evidence in criminal proceedings: (i)
they must have been obtained in accordance with the law; (ii) they
must demonstrate that the defendant’s intention to engage in
trafficking of illegal substances had developed independently of the
undercover agents’ acts; and (iii) they must demonstrate that
the defendant had carried out all the preparatory steps necessary for
the commission of the offence.
B. Investigative techniques
- The Operational-Search Activities Act of 12 August
1995 (no. 144FZ) provided at the material time as follows:
Section 1: Operational-search activities
“An operational-search activity is a form of overt
or covert activity carried out by operational divisions of State
agencies authorised by this Act (hereinafter ‘agencies
conducting operational-search activities’) within the scope of
their powers, with a view to protecting life, health, the rights and
freedoms of individuals and citizens or property, and ensuring public
and State security against criminal offences.”
Section 2: Aims of operational-search activities
“The aims of operational-search activities are:
– to detect, prevent, intercept and
investigate criminal offences as well as searching for and
establishing the persons who are planning or committing or have
committed them;
...”
Section 5: Protection of human rights and citizens’
freedoms during operationalsearch activities
“...
A person who considers that an agency conducting
operational-search activities has acted in breach of his or her
rights and freedoms may challenge the acts of that agency before a
superior agency conducting operational-search activities, a
prosecutor’s office or a court.
...”
Section 6: Operational-search measures
“In carrying out investigations the following
measures may be taken:
...
4. test purchase;
...
9. supervision of postal, telegraphic and
other communications;
10. telephone interception;
11. collection of data from technical
channels of communication;
12. operational infiltration;
13. controlled supply;
14. operational experiments.
...
Operational-search activities involving supervision of
postal, telegraphic and other communications, telephone interception
through [telecommunications companies], and the collection of data
from technical channels of communication are to be carried out by
technical means by the Federal Security Service, the agencies of the
Interior Ministry and the regulatory agencies for drugs and
psychotropic substances in accordance with decisions and agreements
signed between the agencies involved.
...”
Section 7: Grounds for the performance of
operational-search activities
“[Operational-search activities may be performed
on the following grounds;] ...
1. pending criminal proceedings;
2. information obtained by the agencies
conducting operational-search activities which:
(1) indicates that an offence is being
planned or that it has been already committed, or points to persons
who are planning or committing or have committed it, if there are
insufficient data for a decision to institute criminal proceedings;
...”
Section 8: Conditions governing the performance of
operational-search activities
“Operational-search activities involving
interference with the constitutional right to privacy of postal,
telegraphic and other communications transmitted by means of wire or
mail services, or with the privacy of the home, may be conducted,
subject to a judicial decision, following the receipt of information
concerning:
1. the appearance that an offence has been
committed or is ongoing, or a conspiracy to commit an offence whose
investigation is mandatory;
2. persons who are conspiring to commit, or
are committing, or have committed an offence whose investigation is
mandatory;
...
Test purchases ..., operational experiments, or
infiltration by agents of the agencies conducting operational-search
activities or individuals assisting them, shall be carried out
pursuant to an order issued by the head of the agency conducting
operationalsearch activities.
Operational experiments may be conducted only for the
detection, prevention, interruption and investigation of a serious
crime, or for the identification of persons who are planning or
committing or have committed a serious crime.
...”
Section 9: Grounds and procedure for judicial
authorisation of operational-search activities involving interference
with the constitutional rights of individuals
“The examination of requests for the taking of
measures involving interference with the constitutional right to
privacy of correspondence and telephone, postal, telegraphic and
other communications transmitted by means of wire or mail services,
or with the right to privacy of the home, shall fall within the
competence of a court at the place where the requested measure is to
be carried out or at the place where the requesting body is located.
The request must be examined immediately by a single judge; the
examination of the request may not be refused.
...
The judge examining the request shall decide whether to
authorise measures involving interference with the above-mentioned
constitutional right, or to refuse authorisation, indicating reasons.
...”
Section 10: Information and documentation in support
of operational-search activities
“To pursue their aims as defined by this Act, the
agencies conducting operationalsearch activities may create and
use databases and open operational registration files.
Operational registration files may be opened on the
grounds set out in points 1 to 6 of section 7(1) of this Act ...”
Section 11: Use of information obtained through
operational-search activities
“Information gathered as a result of
operational-search activities may 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.
...”
On 24
July 2007 section 5 of the Act was amended by prohibiting the agency
conducting operational-search activities from directly or indirectly
inducing or inciting the commission of offences.
- The
Council of Europe’s instruments on the use of special
investigative techniques are outlined in Ramanauskas v. Lithuania
([GC], no. 74420/01, §§ 35-37, ECHR 2008-...).
- Article
125 of the Code of Criminal Procedure of the Russian Federation, in
force from 1 July 2002, provided at the material time that orders of
an interrogator, investigator or prosecutor that were capable of
encroaching on the constitutional rights and freedoms of participants
in criminal proceedings or obstructing their access to justice could
be challenged before a court whose jurisdiction covered the place of
the investigation. Subsequent changes in the Code added the head of
the investigating authority to the list of officials whose acts could
be challenged.
- On
10 February 2009 the Plenary Supreme Court of the Russian Federation
adopted guidelines (Ruling No. 1) on the practice of judicial
examination of complaints under Article 125 of the Code of Criminal
Procedure of the Russian Federation. The Plenary ruled, inter
alia, that decisions by the officials of agencies conducting
operational-search activities must also be subject to judicial review
under the provisions of Article 125 if the officials were acting
pursuant to an order by an investigator or the head of the
investigating or interrogating authority.
C. Evidence in criminal proceedings
- The
Code of Criminal Procedure provides, in so far as relevant:
Article 75: Inadmissible evidence
“1. Evidence obtained in breach of this
Code shall be inadmissible. Inadmissible evidence shall have no legal
force and cannot be relied on as grounds for criminal charges or for
proving any of the [circumstances for which evidence is required in
criminal proceedings].
...”
Article 235: Request to exclude evidence
“...
5. If a court decides to exclude evidence,
that evidence shall have no legal force and cannot be relied on in a
judgment or other judicial decision, or be examined or used during
the trial.
...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that she had been convicted of a drug offence
which she had committed only because she had been incited to do so by
an agent provocateur. She further complained that certain
evidence had not been disclosed at the trial. She relied on Article 6
§ 1 of the Convention, which reads, in so far as relevant, as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested the applicant’s allegations.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
- The
applicant alleged that the sale of cannabis which had led to her
conviction had been initiated by FSB agents, who had harassed her
into finding and selling them the drug, and that she had never before
committed the offence of procurement of drugs and would not have done
so but for their intervention.
- The
applicant also claimed that the issue of incitement had not been
properly examined in the domestic proceedings. She pointed out that
the only way to find out whether or not she had been a victim of
entrapment was to access the operational-search material relating to
her encounters with the FSB agents prior to the test purchase. She
argued that if her telephone had been tapped during this period there
must exist recordings not only of her conversations with S. but also
of those with the FSB agents who had called her and talked her into
selling cannabis in particularly large quantities. The “previous
sales of drugs” that she had admittedly discussed with S. had
also involved the same FSB agents as buyers. The courts had not
established that she had ever sold, or even contemplated selling,
drugs to anyone except the FSB agents. The recordings of her
conversations with S. made it clear that at first the applicant had
not been aware of prices for drugs and had not been sure whether it
was possible to obtain the requested amount of cannabis. Further
support for her claim of incitement could have been found in the
video and audio recordings of the test purchase, which the courts had
refused to examine despite her request.
- Moreover,
the court had refused to call and examine T., the FSB agent
apparently involved in telephone tapping. She also argued that the
video and audio recordings of the test purchase could have been of
relevance to her defence on the grounds of incitement, and that the
courts had failed to justify their refusal to admit them as evidence.
(b) The Government
- The
Government disagreed with the applicant. They contended that the test
purchase had been carried out lawfully in that it complied with the
Operational-Search Activities Act. As regards the grounds for
carrying out the test purchase, the Government referred to sections
1, 2, 7, 8(2) and 10 of the Operational-Search Activities Act and
submitted that there had to be pre-existing information indicative of
a criminal offence, whether planned or committed, for a test purchase
to be ordered. If it was established at any time that the suspected
offence was not of a criminal nature, the operational-search activity
had to be terminated.
- They
further stated that the applicant’s intention to sell the
cannabis had formed before, and independently of, the FSB agents’
intervention. The Government further contended that the Kursk FSB had
possessed information that the applicant and S. were planning the
sale of cannabis. The courts’ conclusion that there had been no
incitement had been thoroughly argued and well-founded, in particular
with reference to the contents of the telephone conversations between
the applicant and S. and the testimonies of B. and other witnesses.
They also pointed out, as the domestic courts had, that the threats
allegedly received by the applicant were unlikely to be related to
the drug sale at issue because the witnesses at the trial had
testified that the threats had continued after the applicant’s
arrest.
- As
regards the video and audio recordings of the test purchase, the
Government explained that those materials had not been accepted as
evidence in the criminal file because the fact that the applicant had
sold the cannabis was undisputed and was supported by ample evidence,
including witness testimonies. There had accordingly been no need for
additional evidence to prove that the transaction had taken place.
- As
regards the possibility for the applicant to raise a defence argument
relating to the incitement, the Government submitted that she had had
a number of avenues available to raise this issue. They contended
that the operational-search activity of the FSB agents had been
subject to supervision by the prosecutor’s office and the
courts. In particular, it had been open to the applicant to challenge
the lawfulness of the operationalsearch activity, thereby
raising the complaint of incitement, under section 5(3) of the
Operational-Search Activities Act by using the procedure provided for
by Article 125 of the Code of Criminal Procedure. She had also
included the complaint of incitement in her grounds of appeal and it
had been examined.
2. The Court’s assessment
(a) General principles
- The
Court recognises in general that the rise in organised crime calls
for appropriate measures to be taken. Nevertheless, it has
consistently reiterated that the right to a fair trial, from which
the requirement of the proper administration of justice is to be
inferred, nevertheless applies to all types of criminal offence, from
the most straightforward to the most complex. The right to the fair
administration of justice holds so prominent a place in a democratic
society that it cannot be sacrificed for the sake of expedience (see
Delcourt v. Belgium, 17 January 1970, § 25, Series A
no. 11).
- In
the specific context of investigative techniques used to combat drug
trafficking and corruption, the Court’s longstanding view has
been that the public interest cannot justify the use of evidence
obtained as a result of police incitement, as to do so would expose
the accused to the risk of being definitively deprived of a fair
trial from the outset (see, among other authorities, Teixeira de
Castro v. Portugal, 9 June 1998, §§ 35-36 and 39,
Reports of Judgments and Decisions 1998-IV; Khudobin v.
Russia, no. 59696/00, § 135, ECHR 2006-XII; Vanyan
v. Russia, no. 53203/99, §§ 46 and 47, 15 December
2005; and Ramanauskas, cited above, § 54).
- In
its extensive case-law on the subject the Court has developed the
concept of entrapment breaching Article 6 § 1 of the Convention,
as distinguished from the use of legitimate undercover techniques in
criminal investigations. It has held that while the use of special
investigative methods – in particular, undercover techniques –
cannot in itself infringe the right to a fair trial, the risk of
police incitement entailed by such techniques means that their use
must be kept within clear limits (see Ramanauskas, cited
above, § 51).
- To
distinguish entrapment from permissible conduct the Court has
developed the following criteria.
(i) Substantive test of incitement
- When faced with a plea of entrapment the Court will
attempt, as a first step, to establish whether the offence would have
been committed without the authorities’ intervention. The
definition of incitement given by the Court in Ramanauskas
(cited above, § 55) reads as follows:
“Police incitement occurs where the officers
involved – whether members of the security forces or persons
acting on their instructions – do not confine themselves to
investigating criminal activity in an essentially passive manner, but
exert such an influence on the subject as to incite the commission of
an offence that would otherwise not have been committed, in order to
make it possible to establish the offence, that is, to provide
evidence and institute a prosecution ...”
- In
deciding whether the investigation was “essentially passive”
the Court will examine the reasons underlining the covert operation
and the conduct of the authorities carrying it out. The Court will
rely on whether there were objective suspicions that the applicant
had been involved in criminal activity or was predisposed to commit a
criminal offence
- In
this respect the Court in Teixeira de Castro (cited above, §§
37 and 38) laid stress on the fact that the national authorities did
not appear to have had any good reason to suspect the applicant of
prior involvement in drug trafficking:
“... he had no criminal record and no preliminary
investigation concerning him had been opened. Indeed, he was not
known to the police officers, who only came into contact with him
through the intermediary of V.S. and F.O. ...
Furthermore, the drugs were not at the applicant’s
home; he obtained them from a third party who had in turn obtained
them from another person ... Nor does the Supreme Court’s
judgment of 5 May 1994 indicate that, at the time of his arrest, the
applicant had more drugs in his possession than the quantity the
police officers had requested thereby going beyond what he had been
incited to do by the police. There is no evidence to support the
Government’s argument that the applicant was predisposed to
commit offences.”
- These
criteria were reiterated in the case of Eurofinacom v.
France ((dec.), no. 58753/00, ECHR 2004-VII) and developed
in the subsequent case-law. In particular, the Court required that
any preliminary information concerning the pre-existing criminal
intent must be verifiable, as stated in the cases of Vanyan
(cited above, § 49) and Khudobin (cited above, §
134). The authorities must be able to demonstrate at any stage that
they had good reasons for mounting the covert operation (see
Ramanauskas, cited above, §§ 63 and 64, and
Malininas v. Lithuania, no. 10071/04, § 36, 1 July
2008).
- As
regards the previous criminal record of the person concerned, the
Court has specified that even if the applicant did have a criminal
conviction in the past, this was not by itself indicative of any
ongoing criminal activity (see Constantin and Stoian v. Romania,
nos. 23782/06 and 46629/06, § 55, 29 September 2009):
“Nothing in the applicants’ past suggested a
predisposition to trafficking in drugs. The fact alone that one of
them was a convicted drug user ... cannot change the Court’s
conclusion. The Court notes that the prosecutor did not give details,
or refer to any objective evidence, concerning the applicants’
alleged unlawful behaviour in his decision to start criminal
proceedings. Moreover, no heroin was found either in the first
applicant’s possession or in the second applicant’s
home.”
- In
addition to the aforementioned, the following may, depending on the
circumstances of a particular case, also be considered indicative of
pre-existing criminal activity or intent: the applicant’s
demonstrated familiarity with the current prices for drugs and
ability to obtain drugs at short notice (see Shannon v. the United
Kingdom (dec.), no. 67537/01, ECHR 2004-IV) and the applicant’s
pecuniary gain from the transaction (see Khudobin, cited
above, § 134).
- Closely
linked to the criterion of objective suspicions is the question of
the point at which the authorities launched the undercover operation,
i.e. whether the undercover agents merely “joined” the
criminal acts or instigated them. In the case of Sequeira v.
Portugal ((dec.), no. 73557/01, ECHR 2003-VI) the Court found
that there had been no police incitement, basing its finding on the
following considerations:
“In the present case, it has been established by
the domestic courts that A. and C. began to collaborate with the
criminal-investigation department at a point when the applicant had
already contacted A. with a view to organising the shipment of
cocaine to Portugal. Furthermore, from that point on, the activities
of A. and C. were supervised by the criminal-investigation
department, the prosecution service having been informed of the
operation. Finally, the authorities had good reasons for suspecting
the applicant of wishing to mount a drug-trafficking operation. These
factors establish a clear distinction between the present case and
Teixeira de Castro, and show that A. and C. cannot be
described as agents provocateurs. As the domestic courts
pointed out, as in Lüdi [Lüdi v. Switzerland,
15 June 1992, Series A no. 238)], their activities did not exceed
those of undercover agents.”
- This
criterion has been used in a number of cases where the police only
became involved after being approached by a private individual –
crucially, not a police collaborator or informant – with
information indicating that the applicant had already initiated a
criminal act. In Shannon (cited above) the Court found as
follows:
“Turning to the present case, the Court notes that
the State’s role was limited to prosecuting the applicant on
the basis of information handed to it by a third party. The applicant
was ‘set up’ by a journalist, a private individual, who
was not an agent of the State: he was not acting for the police on
their instructions or otherwise under their control. The police had
no prior knowledge of M’s operation, being presented with the
audio and video recordings after the event. The Court therefore
considers that the situation in the instant case is different from
that examined in the Court’s judgment in the Teixeira
[Teixeira de Castro, cited above] case.”
- Later,
in the cases of Milinienė v. Lithuania (no.
74355/01, 24 June 2008) and Gorgievski v. “the former
Yugoslav Republic of Macedonia” (no. 18002/02, §§
52 and 53, 16 July 2009), the Court, confronted with situations
involving private individuals, confirmed its approach and also found
that there had been no entrapment. The relevant finding in the
Milinienė case reads as follows:
“37. ... the initiative in the case was
taken by SŠ, a private individual, who, when he understood
that the applicant would require a bribe to reach a favourable
outcome in his case, complained to the police. Thereafter the police
approached the Deputy Prosecutor General who authorised and followed
the further investigation within the legal framework of a criminal
conduct simulation model, affording immunity from prosecution to SŠ
in exchange for securing evidence against the suspected offender.
38. To the extent that SŠ had police
backing to offer the applicant considerable financial inducements and
was given technical equipment to record their conversations, it is
clear that the police influenced the course of events. However, the
Court does not find that police role to have been abusive, given
their obligation to verify criminal complaints and the importance of
thwarting the corrosive effect of judicial corruption on the rule of
law in a democratic society. Nor does it find that the police role
was the determinative factor. The determinative factor was the
conduct of SŠ and the applicant. To this extent, the Court
accepts that, on balance, the police may be said to have ‘joined’
the criminal activity rather than to have initiated it. Their actions
thus remained within the
bounds of undercover work rather than that of agents provocateurs
in possible breach of Article 6 § 1 of the Convention ...”
- Applying
the same criterion, in the case of Malininas (cited above) the
Court established that the covert operation in question involved
entrapment:
“37. The Court observes that it was
Officer V who took the initiative when he first approached the
applicant, asking where he could acquire illegal drugs. The applicant
then offered to supply them himself. As the transaction progressed,
the applicant was offered a significant sum of money – USD
3,000 – to supply a large amount of narcotics. This obviously
represented an inducement to produce the goods. The first instance
court recognised the determinative part played by the police ...
These elements in the present case, in the Court’s view,
extended the police’s role beyond that of undercover agents to
that of ‘agents provocateurs’. They did not merely
‘join’ an on-going offence; they instigated it. The
necessary inference from these circumstances is that the police did
not confine themselves to investigating the applicant’s
criminal activity in an essentially passive manner, but exercised an
influence such as to incite the commission of the offence ...”
- When
drawing the line between legitimate infiltration by an undercover
agent and instigation of a crime the Court will examine the question
whether the applicant was subjected to pressure to commit the
offence. It has found the abandonment of a passive attitude by the
investigating authorities to be associated with such conduct as
taking the initiative in contacting the applicant, renewing the offer
despite his initial refusal, insistent prompting, raising the price
beyond average (see, among other cases, Malininas, cited
above, § 37) or appealing to the applicant’s compassion by
mentioning withdrawal symptoms (see Vanyan, cited above, §§
11 and 49). The relevant finding in the Ramanauskas case
(cited above, § 67) reads as follows:
“Secondly, as is shown by the recordings of
telephone calls, all the meetings between the applicant and AZ took
place on the latter’s initiative, a fact that appears to
contradict the Government’s argument that the authorities did
not subject the applicant to any pressure or threats. On the
contrary, through the contact established on the initiative of AZ and
VS, the applicant seems to have been subjected to blatant prompting
on their part to perform criminal acts, although there was no
objective evidence – other than rumours – to suggest that
he had been intending to engage in such activity.”
- When applying the above criteria, the Court places the
burden of proof on the authorities. To that end it has held that “it
falls to the prosecution to prove that there was no incitement,
provided that the defendant’s allegations are not wholly
improbable” (see Ramanauskas, cited above, § 70).
In practice, the authorities may be prevented from discharging this
burden by the absence of formal authorisation and supervision of the
undercover operation. In this context, in the case of Teixeira de
Castro (cited above, § 38) the Court found that the
undercover agent’s activity was not part of an operation
ordered and supervised by a judge, distinguishing it on this ground
from the case of Lüdi (cited above), where the police
officer concerned had been sworn in, the investigating judge had been
aware of his task and a preliminary investigation had been opened.
- In
cases against Russia (Vanyan, cited above, §§
46 and 47, and Khudobin, cited above, § 135) the Court
has also emphasised the need for a clear and foreseeable procedure
for authorising investigative measures, as well as for their proper
supervision. In the latter case the Court found a violation, having
observed, in particular, that the police operation had been
authorised by a simple administrative decision by the body which
later carried out the operation; the decision contained very little
information as to the reasons for and purposes of the planned test
purchase, and the operation was not subjected to judicial review or
any other independent supervision (ibid.).
- As regards the authority exercising control over
covert operations, the Court has held that judicial supervision would
be the most appropriate means; however, with adequate procedures and
safeguards other means may be used, such as supervision by a
prosecutor (see Milinienė, cited above, § 39).
(ii) The procedure whereby the plea of
incitement was determined
- With the possible exception of Teixeira de Castro
(cited above), where the Court found sufficient grounds to establish
the entrapment on the basis of the substantive test only, as a
general rule the Court will also examine the way the domestic courts
dealt with the applicant’s plea of incitement. In fact, as the
case-law currently stands, the Court considers the procedural aspect
a necessary part of the examination of the agent provocateur
complaint (see Ramanauskas, cited above, § 69).
- Moreover,
in cases where the lack of file disclosure or the controversy of the
parties’ interpretation of events precludes the Court from
establishing with a sufficient degree of certainty whether the
applicant was subjected to police incitement, the procedural aspect
becomes decisive (see Edwards and Lewis v. the United Kingdom
[GC], nos. 39647/98 and 40461/98, § 46, ECHR 2004-X;
V. v. Finland, no. 40412/98, § 72, 24 April 2007; and
Constantin and Stoian, cited above, §§ 56-57).
- In
examining the procedure followed by the domestic courts the Court has
had regard to the potential outcome of a successful plea of
incitement.
- As
the starting-point, the Court must be satisfied with the domestic
courts’ capacity to deal with such a complaint in a manner
compatible with the right to a fair hearing. It should therefore
verify whether an arguable complaint of incitement constitutes a
substantive defence under domestic law, or gives grounds for the
exclusion of evidence, or leads to similar consequences. In
Ramanauskas (cited above) the Court held as follows:
“69. Article 6 of the Convention will
be complied with only if the applicant was effectively able to raise
the issue of incitement during his trial, whether by means of an
objection or otherwise. It is therefore not sufficient for these
purposes, contrary to what the Government maintained, that general
safeguards should have been observed, such as equality of arms or the
rights of the defence.
70. It falls to the prosecution to prove that
there was no incitement, provided that the defendant’s
allegations are not wholly improbable. In the absence of any such
proof, it is the task of the judicial authorities to examine the
facts of the case and to take the necessary steps to uncover the
truth in order to determine whether there was any incitement. Should
they find that there was, they must draw inferences in accordance
with the Convention ...”
- The
Court will generally leave it to the domestic authorities to decide
what procedure must be followed by the judiciary when faced with a
plea of incitement. For instance, in cases against the United Kingdom
it has not expressed any preference for one of the two following
procedures available under English law (see, among other authorities,
Edwards and Lewis, cited above, § 46):
“Under English law, although entrapment does not
constitute a substantive defence to a criminal charge, it does place
the judge under a duty either to stay the proceedings as an abuse of
process or to exclude any evidence obtained by entrapment on the
ground that its admission would have such an adverse effect on the
fairness of the proceedings that the court could not admit it ...”
- As regards Russia, the Court has indicated that the
procedure for the exclusion of evidence would in principle be
appropriate. It has held that where an accused asserts that he was
incited to commit an offence, the criminal courts must carry out a
careful examination of the material in the file, since for the trial
to be fair within the meaning of Article 6 § 1 of the
Convention, all evidence obtained as a result of police incitement
must be excluded. This is especially true where the police operation
took place without a sufficient legal framework or adequate
safeguards (see Khudobin, cited above, §§
133-135).
- Whatever
form of procedure the domestic courts follow, the Court requires it
to be adversarial, thorough, comprehensive and conclusive on the
issue of entrapment. One example of procedure found by the Court to
be satisfactory was described in the case of Shannon (cited
above):
“In the course of [the application to exclude the
evidence on the grounds that it had been obtained by entrapment], in
which the applicant was represented by counsel, the prosecution
witnesses were called to give evidence and were cross-examined and
the applicant gave evidence on his own behalf and called a witness in
support of his case. After a five-day hearing the trial judge refused
to exclude the evidence, holding that its admission would not have an
adverse effect on the fairness of any proceedings that might follow.
In his ruling, which was based on all the material before him,
including the video recording and audio transcripts themselves, the
trial judge concluded that the applicant had not been entrapped ...”
- As
regards the principles of adversarial proceedings and equality of
arms, the Court has found these guarantees to be indispensable in the
determination of an agent provocateur claim, particularly in
the context of non-disclosure of information by the investigating
authorities.
- The
questions to be addressed by the judicial authority deciding on an
entrapment plea were set out in Ramanauskas (cited above):
“71. The Court observes that throughout
the proceedings the applicant maintained that he had been incited to
commit the offence. Accordingly, the domestic authorities and courts
should at the very least have undertaken a thorough examination ...
of whether or not [the prosecuting authorities] had incited the
commission of a criminal act. To that end, they should have
established in particular 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. ... The applicant should have had the opportunity
to state his case on each of these points.”
- Furthermore,
the Court has found that a guilty plea as regards criminal charges
does not dispense the trial court from the duty to examine
allegations of incitement (ibid., § 72):
“... Indeed, the Supreme Court found that there
was no need to exclude [evidence obtained as a result of the police
incitement] since it corroborated the applicant’s guilt, which
he himself had acknowledged. Once his guilt had been established, the
question whether there had been any outside influence on his
intention to commit the offence had become irrelevant. However, a
confession to an offence committed as a result of incitement cannot
eradicate either the incitement or its effects.”
- Finally,
the Court reiterates that it is a common feature of many agent
provocateur cases that the applicant is precluded from raising a
plea of incitement because the relevant evidence has been withheld
from the defence, often by a formal decision on grounds of
public-interest immunity granted to particular categories of
evidence.
- The
Court, while recognising that the right to a fair criminal trial
under Article 6 includes a right to disclosure of all material
evidence in the possession of the prosecution, both for and against
the accused, has nevertheless accepted that there may be restrictions
on the right to a fully adversarial procedure where strictly
necessary in the light of a strong countervailing public interest,
such as national security, the need to keep secret certain police
methods of investigation or the protection of the fundamental rights
of another person. There will not be a fair trial, however, unless
any difficulties caused to the defendant by a limitation on his
rights are sufficiently counterbalanced by the procedures followed by
the judicial authorities (see, for example, Doorson v. the
Netherlands, 26 March 1996, § 70, Reports 1996-II;
Van Mechelen and Others v. the Netherlands, 23 April 1997, §
58, Reports 1997-III; Jasper v. the United Kingdom [GC],
no. 27052/95, §§ 51-53, ECHR 2000-II; S.N. v.
Sweden, no. 34209/96, § 47, ECHR 2002-V; Botmeh and Alami
v. the United Kingdom, no. 15187/03, § 37, 7 June 2007;
and A. and Others v. the United Kingdom [GC], no. 3455/05,
§§ 205 et seq., ECHR 2009-...).
- Therefore,
in public-interest immunity cases the Court has considered it
essential to examine the procedure whereby the plea of incitement was
determined in order to ensure that the rights of the defence were
adequately protected, in particular the right to adversarial
proceedings and to equality of arms (see Edwards and Lewis,
cited above, §§ 46-48, and, mutatis mutandis,
Jasper, cited above, §§ 50 and 58). The procedure in
the cases in question consisted of the following. The public-interest
immunity material was made available to the trial judge in the ex
parte procedure, and the judge would decide whether any of the
confidential material would assist the defence, in particular to
argue the point of entrapment, in which case it would be obliged to
order its disclosure. The Court found, in particular, that the issue
of entrapment, if determined by the trial judge who also decided upon
the guilt or innocence of the accused, was too closely related to the
essence of criminal charges to exclude the defence from full
knowledge of all material to which the prosecution had access
(ibid.). Subsequently, the Court examined (in the context primarily
of Article 5 § 4, but also of Article 6) the possibility of
using special advocates to counterbalance the procedural unfairness
caused by lack of full disclosure in national-security cases but also
found such an approach to be capable of upsetting equality of arms,
depending on the importance of the undisclosed material to the
outcome of the trial (see A. and Others, cited
above, §§ 205 et seq.).
- Although
the above cases concerned the specific situation of nondisclosure
of information admitted as evidence, the Court has adopted a broader
application of the principles set out therein, extending them to the
entire procedure by which the plea of incitement was determined (see
Ramanauskas, §§ 60-61; Malininas, §
34; V. v. Finland, §§ 76 et seq.; and Khudobin,
§ 133, all cited above). Even if the information in question was
not part of the prosecution file and had not been admitted as
evidence, the court’s duty to examine the incitement plea and
ensure the overall fairness of the trial requires that all relevant
information, particularly regarding the purported suspicions about
the applicant’s previous conduct, be 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, mutatis mutandis, Bulfinsky v. Romania,
no. 28823/04, 1 June 2010).
- For the same reasons the Court will generally require
that the undercover agents and other witnesses who could testify on
the issue of incitement should be heard in court and be
cross-examined by the defence, or at least that detailed reasons
should be given for a failure to do so (see Lüdi, §
49; Sequeira; Shannon; and Bulfinsky, § 45,
all cited above; and Kuzmickaja v. Lithuania (dec.), no.
27968/03, 10 June 2008).
(b) Application of these principles in the
present case
- The
Court observes that in contesting the fairness of the proceedings the
applicant put forward two arguments. Firstly, she alleged that her
criminal conviction for drug dealing had been the result of
entrapment by the FSB agents who had induced her to sell them
cannabis. Secondly, she contended that at the trial she could not
effectively plead incitement as her defence because of her inability
to access the material from the preliminary investigation. She
claimed that she had therefore been deprived of a fair hearing in the
determination of criminal charges against her.
- As
follows from the general principles set out above, the first question
to be examined by the Court when confronted with a plea of entrapment
is whether the State agents carrying out the undercover activity
remained within the limits of “essentially passive”
behaviour or went beyond them, acting as agents provocateurs.
In addressing this question, the Court will apply the substantive
test of incitement set out in paragraphs 37-50 above; its ability to
make a substantive finding on this point will depend, however, on
whether or not the case file contains sufficient information on the
undercover activities preceding the offence, in particular the
details of encounters between the State agents and the applicant
before the test purchase. If the substantive test is inconclusive
owing to the lack of information in the file, the Court will proceed
to the second step of its examination, whereby it will assess the
procedure by which the plea of incitement was determined by the
domestic courts in the light of the criteria set out in paragraphs
51-65 above.
- Turning
to arguments adduced in the present case as regards the substantive
test, the Court observes that the parties disagreed as to whether the
FSB had carried out the investigation in the applicant’s case
in an essentially passive manner. In particular, they differed as to
the role of the undercover agent in the applicant’s sale of
cannabis in connection with the test purchase and the applicant’s
previous involvement in trading drugs before that agent’s
intervention.
- The Court observes that the applicant began to arrange
the sale in question in September 2004, allegedly through a certain
Vladimir, who requested her to sell him large quantities of cannabis
and harassed her into that deal. Until 28 January 2005 the applicant
was preparing the sale, acting as an intermediary between S., the
supplier, and Vladimir. According to the applicant’s own
testimonies in court, her first encounter with the FSB undercover
agent B. took place on 29 January 2005, immediately before the test
purchase. By that stage the FSB already possessed recordings of her
conversations with S., which had taken place between 23 and 27
January 2005, concerning the ongoing drug sale. It follows from that
account that the FSB agent B. stepped into the transaction when it
was already under way. Therefore, as far as B.’s role is
concerned, it is beyond doubt that he merely “joined in”
the criminal acts rather than instigated them.
- In
so far as the applicant could be understood as claiming that Vladimir
had also acted on the instructions of the FSB, the Court is unable to
see any indication of such a link on the basis of the case file. It
observes that the materials in its possession contain no account of
the initial phase of the transaction other than that given by the
applicant at the trial. It cannot therefore determine with certainty
whether Vladimir’s alleged involvement was part of the
undercover operation, and if so, whether he exerted pressure on the
applicant to commit the offence at issue.
- In
the light of the above, the Court will have to proceed to the second
step of its assessment and examine whether the applicant was able to
raise the issue of incitement effectively in the domestic
proceedings, and also assess the manner in which the domestic court
dealt with her plea.
- As
to whether the applicant had the opportunity to raise a defence
argument relating to incitement, the Government contended, inter
alia, that the applicant had been able to effectively raise the
incitement plea at the trial and that the courts had thoroughly
examined and determined it.
- The
Court reiterates that for such a plea to be effectively addressed the
court would have had to establish in adversarial proceedings 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 (see
Ramanauskas, cited above, § 71). In the present case the
trial court, confronted with the applicant’s allegation that
her dealings with Vladimir had been a part of the undercover
operation – an allegation which was not wholly improbable –
was under an obligation to take the necessary steps to uncover the
truth, while bearing in mind the burden of proof falling on the
prosecution to prove that there had been no incitement (ibid., §
70). It should accordingly have verified, by assessing the
information in the case file and, if necessary, reviewing the
relevant materials concerning the undercover operation and examining
the officials and other individuals involved, whether Vladimir had
been primed by the FSB to approach the applicant and ask her to sell
drugs.
- The
applicant complained that the domestic courts’ review had been
incomplete because of their failure to take cognisance of all
possible materials supporting her entrapment plea. She argued, in
particular, that it had refused to call and examine T., the FSB agent
apparently involved in telephone tapping, to admit the video and
audio recordings of the test purchase as evidence and to seek further
proof in the form of the recordings of her conversations with the FSB
agents which must in theory have existed.
- The
appeal court explained that no further evidence was necessary because
it could already rule out incitement on the basis of the recordings
of the applicant’s conversation with S. mentioning “occasions
of previous sales of narcotic drugs, the remaining unsold stock of
narcotic drugs, the emergence of new customers and the prospects of
carrying out another sale together”. The Court agrees with the
appeal court that this evidence was highly relevant to the conclusion
as to the applicant’s pre-existing intent to sell drugs.
- The
Court further observes that the FSB agent B. was called and
cross-examined at the hearing and that the applicant had the
possibility of putting questions to him concerning Vladimir’s
identity and his alleged role as the FSB informant or as an agent
provocateur. No such link – or indeed the existence of any
such person – was established as a result. The Court does not
consider that questioning T., another FSB agent, would have provided
the applicant with additional means of arguing her point. It likewise
considers legitimate the court’s refusal to allow access to the
recordings of the test purchase on the ground that this was
superfluous since the fact that the applicant had sold the drugs was
not in dispute. Finally, in the absence of any indication to the
contrary, the Court accepts that no recordings existed of the
applicant’s conversations with the FSB agents.
- In
the light of the foregoing, the Court considers that the applicant’s
plea of incitement was adequately addressed by the domestic courts,
which took the 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. Their conclusion
that there had been no entrapment was thus based on a reasonable
assessment of evidence that was relevant and sufficient.
- Having
regard to the scope of the judicial review of the applicant’s
plea of incitement, the Court finds that the applicant’s trial
was compatible with the notion of fairness required by Article 6 of
the Convention.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention;
Done in English, and notified in writing on 4 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
