Search
document

Document text Analytics

KOLBAS AND OTHERS v. RUSSIA

Doc ref: 74253/11;13542/16;37481/16;11520/19;21214/19;29259/19;29522/19;56652/19 • ECHR ID: 001-204318

Document date: July 9, 2020

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 5

KOLBAS AND OTHERS v. RUSSIA

Doc ref: 74253/11;13542/16;37481/16;11520/19;21214/19;29259/19;29522/19;56652/19 • ECHR ID: 001-204318

Document date: July 9, 2020

Cited paragraphs only

THIRD SECTION

DECISION

Application no. 74253/11 Konstantin Valeryevich KOLBAS against Russia and 7 other applications

( s ee appended table)

The European Court of Human Rights (Third Section), sitting on 9 July 2020 as a Committee composed of:

Alena Poláčková , President, Dmitry Dedov , Gilberto Felici , judges,

and Liv Tigerstedt, Acting Deputy Section Registrar,

Having regard to the above application s lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The list of applicant s is set out in the appended table.

The applicants ’ complaints under Article 6 § 1 of the Convention concerning the entrapment by State agents were communicated to the Russian Government (“the Government”) . In application no. 74253/11, the applicant also raised other complaints under Articles 3 and 13 of the Convention.

THE LAW

Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

The applicants complained that they had been unfairly convicted of drug ‑ related criminal offences incited by the police. These complaints fall to be examined under Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

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

The Court has emphasised, in a number of cases, the role of domestic courts in dealing with criminal cases where the accused alleges that he was incited to commit an offence. Any arguable plea of incitement places the courts under an obligation to examine it and make conclusive findings on the issue of entrapment, with the burden of proof on the prosecution to demonstrate that there was no incitement (see Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 70-71, ECHR 2008, and Khudobin v. Russia , no. 59696/00, §§ 133-135, ECHR 2006 ‑ XII (extracts)).

The Court notes that the applicants ’ plea of incitement was adequately addressed by the Russian courts, which took the necessary steps to uncover the truth and to eradicate the doubts as to whether the applicants had committed the offence as a result of incitement by an agent provocateur. Their conclusion that there had been no entrapment was based on a reasonable assessment of evidence that was relevant and sufficient. The Court also does not lose sight of the fact that during the criminal proceedings before the Russian courts the applicants either denied the facts imputed to them and/or contested the legal classification of their acts or directly confirmed their involvement in the drug sale, having changed their versions of events. Nevertheless, despite the unclearly formulated incitement defence of the applicants in the domestic proceedings (see Lelyukin v. Russia ( dec. ), no. 70841/10, 25 August 2015; Bagaryan and Others v. Russia ( dec. ), nos. 3346/06 and 4 others, 12 November 2013; Trifontsov v. Russia ( dec. ), no. 12025/02, 9 October 2012; and Koromchakova v. Russia ( dec. ), no. 19185/05, 13 December 2016), the Russian courts took all possible steps to verify each version to be certain that the acts imputed to the applicants did not result from unlawful actions on the part of investigative authorities.

Having regard to the scope of the judicial review of the applicants ’ plea of incitement, the Court finds that the applicants ’ complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 (see, for similar reasoning, Bannikova v. Russia , no. 18757/06, §§ 74-79, 4 November 2010)

In application no. 74253/11 t he applicant also raised complaints under Articles 3 and 13 of the Convention about conditions of his pre-trial detention.

The Court notes that on 17 March 2020 it adopted a decision in the case of Shmelev and Others v. Russia (applications nos. 41743/17 and 16 others), finding that the new compensatory remedy envisaged by the Russian Compensation Act was an effective remedy, in particular, for all cases of past pre-trial detention and some situations of correctional detention alleged in breach of domestic provisions. The Court therefore rejects the applicant ’ s complaints in this regard for failure to exhaust domestic remedies. This part of application no. 74253/11 should thus be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention .

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 30 July 2020 .

Liv Tigerstedt Alena Poláčková Acting Deputy Registrar President

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 (appeal court, date)

74253/11

04/11/2011

Konstantin Valeryevich KOLBAS

28/12/1980

15/07/2008

opium

17/07/2008

opium

27/08/2008

opium

Anonymous / unverified tip

Tomsk Regional Court, 05/12/2011

13542/16

03/03/2016

Eduard Andreyevich KHROMAYEV

25/09/1990

Leonidchenko Valentina Vladimirovna

Moscow

25/09/2013

α- Pyrrolidinovalerophenone

03/10/2013

α- Pyrrolidinovalerophenone

fellow drug user, anonymous / unverified tip

Rostov Regional Court 08/09/2015

37481/16

20/06/2016

Aleksandr Vasilyevich MAKAROV

14/06/1981

27/04/2015

α- Pyrrolidinovalerophenone

fellow drug user, anonymous / unverified tip

Chelyabinsk Regional Court 23/12/2015

11520/19

30/01/2019

Aleksandr Andreyevich SHMAKOV

12/07/1994

04/03/2017

" Shokolad " (synthetic drug)

fellow drug user

Krasnoyarsk Regional Court, 31/07/2018

21214/19

08/04/2019

Tagy Akif ogly GASANZADE

30/06/1997

Bibik Oleg Ivanovich

Ivanovo

02/02/2018

mephedrone

26/02/2018

amphetamine

Anonymous / unverified tip

Kostroma Regional Court, 05/02/2019

29259/19

17/05/2019

Yana Vyacheslavovna OVCHINNIKOVA

29/06/1989

Spiridonov Aleksey Vyacheslavovich

Novocheboksarsk

20/01/2011

hashish

fellow drug user

Supreme Court of the Chuvashiya Republic, 24/04/2019

29522/19

17/05/2019

Maksim Alekseyevich MIKHAYLOV

08/06/1989

Spiridonov Vyacheslav Leonidovich

Novocheboksarsk

20/01/2011

hashish

fellow drug user

Supreme Court of the Chuvashiya Republic, 24/04/2019

56652/19

29/10/2019

Ivan Narimanovich MAKSIMOV

30/11/1987

Miroshnikov Aleksey Sergeyevich

Arkhangelsk

03/02/2019

hashish

lack of incriminating information, repeated calls

Nenets Autonomous Regional Court, 30/09/2019

LEXI

Lexploria AI Legal Assistant