FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53203/99 by Grigoriy Arkadyevich VANYAN against Russia

The European Court of Human Rights (First Section), sitting on 13 May 2004 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs F. Tulkens , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky ,

Mrs E. Steiner , judges , and Mr S . Nielsen , Section Registrar ,

Having regard to the above application lodged on 16 November 1999,

Having regard to the observations submitted by the respondent Government on 2 February 2001 and 11 June 2002 and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Grigoriy Arkadyevich Vanyan, is a Russian national, who was born in 1971 and lives in Moscow. He was represented before the Court by Mrs K. Moskalenko and Mrs M. Voskobitova, the lawyers of the International Protection Centre practising in Moscow .

The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Police officers EF and MB contacted an individual, OZ, who was known to them for her drug habit. The officers asked OZ to participate in a “test buy” of drugs in order to identify her supplier. OZ agreed to collaborate with the police. She was given some cash by the officers for the purpose of buying drugs.

In the evening of 2 June 1998 OZ called the applicant on the telephone, asking him to procure drugs for her. OZ mentioned to the applicant that she badly needed drugs as she was in the state of abstinence. They agreed to meet in front of an apartment block where another individual, SZ, lived. The deal was to take place in the flat of SZ. Later on the same day OZ arrived to the meeting-place whilst under the surveillance of EF and MB. She gave the applicant 200 roubles (“RUR”) in cash. The applicant went to the flat of SZ and obtained from him 0.318 grams of heroin in two small wrap ups, having paid 400 RUR in cash. The applicant then left the flat and gave one wrap up to OZ, while keeping the second for himself. After the applicant and OZ together left the apartment block, she gave a sign to EF and MB that she had procured drugs. The officers tried to apprehend the applicant, but he escaped.

The applicant was arrested on 3 June 1998. He was searched, and a packet of heroin was found on him. The next day administrative proceedings were brought against the applicant who was charged with petty hooliganism. The applicant was ordered to pay a fine. He was released on 5 June 1998.

On 5 June 1998 criminal proceedings were brought against the applicant and on 11 June 1998 he was charged with procurement and supply of drugs.

On 2 April 1999 the Moscow City Lyublin District Court convicted the applicant of unlawful procurement and supply of drugs in large quantities on the basis of the evidence given by the witness OZ, the co-defendant SZ, and the police officers EF and MB. In finding the applicant guilty, the court also referred to the evidence of other witnesses and experts who had confirmed that on 2 June 1998 the applicant had in fact procured heroin from SZ and had sold part of it to OZ. In referring to the evidence given by EF and MB, the court noted inter alia the following:

“[They had] explained to the court that the police held the operational material that Vanyan dealt with drugs. [OZ], who had [previously] approached Vanyan [to] procure drugs from him, was selected to verify that information. For this purpose [OZ] was given money ... . She then made an appointment with Vanyan. [OZ] was subjected to permanent surveillance, in the course of which [EF and MB] saw that Vanyan and [OZ] met and went into [the apartment block of SZ] and left it. [OZ] gave an agreed sign meaning that she had bought the drugs from Vanyan.”

The applicant was sentenced to seven years' imprisonment and a confiscation order was made.

He appealed against the first instance judgment, claiming inter alia that he had been incited to commit the offence by the officers EF and MB, and OZ acting as a police agent.

On 17 May 1999 the Moscow City Court rejected the appeal on the ground that the fact of the drug deal and the applicant's criminal intent therein had been established. As to the involvement of the police officers and OZ in the present case, the appellate court found:

“[OZ] willingly helped the police officers to unveil G. Vanyan in supply of drugs, asked him to procure heroin, to obtain which she was given money by the police. She met G. Vanyan who supplied her with heroin ... .”

On 10 November 2000 the Deputy President of the Supreme Court lodged an application for “supervisory review” ( протест ) of the judgment of 2 April 1999 and the decision of 17 May 1999. On 16 November 2000 the case was re-examined by the Presidium of the Moscow City Court on “supervisory review” ( надзор ). The court held inter alia :

“Having correctly established the circumstances of the case, the trial court gave a wrong legal assessment thereof in the [first instance] judgment. Vanyan [...] did not act with intent to supply [OZ with drugs] but as a co-principal of [OZ], having purchased drugs for personal use.”

The Moscow City Court concluded that the applicant could only be convicted of unlawful procurement of drugs without intent to supply (Article 228 § 1 of the Criminal Code), but not of the more severe offence of unlawful supply of drugs (Article 228 § 4 of the Criminal Code). Accordingly, the Moscow City Court amended the conviction, quashing the conviction under Article 228 § 4 of the Criminal Code, and convicted him under Article 228 § 1. The court reduced the applicant's sentence to two years' imprisonment. By reference to an amnesty law, the court ordered the applicant's release.

The applicant and his counsel were not informed about the “supervisory review” hearing of 16 November 2000. Accordingly, they did not attend it. It appears that the prosecution participated in the hearing.

B. Relevant domestic law and practice

Article 228 § 1 of the Criminal Code punishes the offence of unlawful procurement of drugs without an intent to supply. Article 228 § 4 punishes unlawful supply of drugs in large quantities.

Article 6 of the Operational-Search Activities Act (of 5 July 1995) lists a number of intrusive techniques to be used by law enforcement or security authorities for the purpose of investigating crimes. Under Article 6 § 1 (4) of the Act, the police can carry out a “test buy” ( проверочная закупка ).

Article 377 § 3 of the Code of Criminal Procedure of 1960 in force at the material time provides that a supervisory review court may, where necessary, summon a convicted person and his counsel. Those summoned are given an opportunity to participate in the proceedings by examining an application for supervisory review and making oral submissions at the hearing. On 14 February 2000 the Constitutional Court of the Russian Federation ruled that the above provision was incompatible with the federal Constitution where grounds for supervisory review of a case tended to worsen the situation of a convicted person.

For the summary of the relevant domestic provisions concerning “supervisory review”, see also the Nikitin decision as to the admissibility ( Nikitin v. Russia (dec.), no. 50178/99, 13 November 2003).

COMPLAINTS

1. Under Articles 6, 8 and 13 of the Convention the applicant complained that he had been incited by police officers EF and MB acting through OZ as their agent to commit the offences of procurement and supply of drugs under Article 228 §§ 1 and 4 of the Convention.

2. The applicant also complained on 19 March 2001 that the “supervisory review” procedure before the Moscow City Court had not been fair within the meaning of Article 6 of the Convention, given that he and his counsel had not allegedly been informed about the application for supervisory review and the date of the “supervisory review” hearing, and that they could not take part at the hearing of 16 November 2000 in contrast to the prosecutor. The applicant further complained that his conviction on 16 November 2000 under Article 228 § 1 of the Criminal Code breached Article 6 of the Convention because he had not been charged with that offence, and he had not been able to defend himself against the conviction under that charge.

3. Under Articles 5 and 13 of the Convention the applicant complained that his administrative arrest and detention between 3 and 5 June 1998 had been unlawful, and that he had had no remedy to contest the lawfulness thereof.

THE LAW

1 . The applicant complained, invoking Articles 6, 8 and 13 of the Convention, about the incitement to commit an offence. Article 6, in so far as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... .”

Article 8, in so far as relevant, reads as follows:

“1. Everyone has the right to respect for his private ... life, ... .

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submitted that on 16 November 2000 the Moscow City Court had reviewed the applicant's conviction by way of “supervisory review”. According to the amended conviction the applicant had been found guilty only of the unlawful procurement of drugs which he had obtained for himself. As the court did not base the amended conviction on evidence received as a result of the actions of the police officers and OZ, the applicant's rights were not violated. The fact that the applicant obtained drugs during the “test buy” made no impact on his right to a fair trial because the applicant had deliberately obtained drugs for personal use, thereby committing a criminal offence. According to the Government, the applicant would have obtained drugs for his personal needs in any event, regardless of the actions of the police authorities or OZ (see, by contrast, Teixeira de Castro v. Portugal , judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV). The Government concluded that in respect of this complaint the applicant was no longer a victim of a violation of Article 6.

The applicant argued that he could still claim to be a victim of a violation of Article 6, given that the court amending the conviction by way of supervisory review had not acknowledged expressly or in substance a violation of the Convention in respect of the applicant's complaint about the incitement of the offence by police and had not afforded redress for the breach in question.

The Court is of the view that these arguments are closely linked with the substance of the applicant's complaint. Consequently, they should be joined to the merits of the application.

The Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. Therefore, this complaint cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2 . The applicant further complained that the “supervisory review” decision to reclassify the offence as unlawful procurement of drugs without intent to supply, taken in his absence and in the absence of his counsel, as they had not been informed about the hearing, had prevented him from exercising the defence rights properly, rendering the criminal proceedings unfair. Article 6 of the Convention in its relevant parts provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ... .

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence; ... .”

The Government disagreed. They submitted that no fresh charges had been brought against the applicant during the “supervisory review” because the initial sentence of drug supply had been merely reclassified as a less severe drug trafficking offence. They stressed the fact that the applicant had never denied that he had bought the narcotics for his own use.

As regards the complaint about the “supervisory review” hearing in absentia , the Government stated, by reference to Article 377 of the Code of Criminal Procedure as amended by the Decision of the Constitutional Court of 14 February 2000, that the summoning of the parties to a “supervisory review” hearing remained at the discretion of the respective court as long as the review proceedings were unlikely to worsen the applicant's situation. Given that in the present case the “supervisory review” procedure had benefited the applicant by reducing the term of his imprisonment and that the respective court had only dealt with the points of law, the Government were of the view that the failure of the Moscow City Court to secure the attendance of the applicant and his counsel did not breach Article 6 of the Convention.

The applicant insisted that the domestic court had failed to provide him with the fair trial guarantees at the “supervisory review” stage of the proceedings. In his view, the re-classification of the applicant's offence had constituted a new charge and not “a less severe drug trafficking” charge as was asserted by the Government. He also pointed out that he had neither been informed of the application of the Deputy President of the Supreme Court for supervisory review and the nature of this charge, nor afforded adequate time and facilities for the preparation of his defence.

The applicant further submitted that the reclassification of the applicant's charge had involved issues of both law and fact. He claimed in this respect that depending on the amount of the drugs possessed, the unlawful procurement of drugs was punishable either as a criminal offence or as an administrative offence with a lenient penalty. The applicant stated that he had been deprived of an opportunity to be present and plead on this particular issue. In view of the above and having regard to the fact that the prosecution had participated in the hearing, the applicant considered that there had been a breach of Article 6 of the Convention in this respect as well.

In the light of the parties' submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. Therefore, this complaint cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant complained under Article 5 of the Convention that his administrative arrest and detention between 3 and 5 June 1998 had been unlawful, and that he had had no remedy in this respect in breach of Article 13 of the Convention.

Leaving aside the question of exhaustion of domestic remedies, the Court notes that this application was lodged with the Court on 16 November 1999, which is more than six months after the events in question. This complaint must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join to the merits the Government's objection concerning the applicant's victim status in respect of his complaint about the incitement to commit an offence;

Declares admissible, without prejudging the merits, the applicant's complaints concerning the incitement to commit an offence and the unfiarness of the supervisory review proceedings;

Declares inadmissible the remainder of the application.

Søren Nielsen Peer Lorenzen Registrar President