Lexploria

THIRD SECTION

CASE OF LIVADNIY AND OTHERS v. RUSSIA

( Application s no s . 12233/10 and 15 others -

see appended list )

JUDGMENT

STRASBOURG

26 March 2020

This judgment is final but it may be subject to editorial revision.

In the case of Livadniy 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 5 March 2020 ,

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 . The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

3 . The list of applicant s and the relevant details of the applications are set out in the appended table.

4 . The applicant s complained that they had been unfairly convicted of drug offences following entrapment by State agents . In application no. 59534/10, the applicant also raised another complaint under Article 6 of the Convention.

THE LAW

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

6 . The applicant s complained principally 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:

Article 6 § 1

“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, an issue similar to that in the present case (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 applicant s 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.

11 . In application no. 59534/10, the applicant submitted another complaint under Article 6 §§ 1 and 3 (d) which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). That complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Zadumov v. Russia , no. 2257/12 , 12 December 2017 .

12 . 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.”

13 . 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, § 28, 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).

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

Done in English, and notified in writing on 26 March 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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)

Other complaints under well-established case-law

12233/10

09/02/2010

Denis Gennadyevich LIVADNIY

03/01/1978

13/11/2008

marijuana

undercover policeman, fellow drug user, lack of incriminating information, repeated calls

Volgograd Regional Court

11/08/2009

59534/10

27/09/2010

Yevgeniy Mikhaylovich FEDOROV

24/06/1971

Makarov Igor Vladimirovich

Novoselye

11/02/2010

desomorphine

04/03/2010

desomorphine

fellow drug user, the seller, Ms K., gave money to the applicant in advance so that the latter c ould prepare drugs for them both

fellow drug user

Astrakhan Regional Court 19/08/2010; Supreme Court of the Russian Federation 18/04/2013;

Presidium of the Astrakhan Regional Court 21/05/2013, amending the conviction

Art. 6 (1) - and Art. 6 (3) (d) - unfair trial in view of restrictions on the right to examine witnesses - prosecution witnesses Mr D. the sole eye-witness to the alleged preparation and sale of the drugs, and Ms K., the buyer of the drugs on both occasions, were not examined for unknown reasons, despite the applicant ’ s objections to the reading out of their statements

10424/11

17/01/2011

Dmitriy Maksimovich SAKHNOV

07/06/1993

19/08/2009

cannabis

26/08/2009

Hashish oil

undercover police officer, lack of incriminating information

pressure to sell, anonymous/unverified tip, undercover police officer, pressure to sell, repeated calls

Astrakhan Regional Court

16/09/2010

11945/11

01/02/2011

Igor Andreyevich LIBET

02/10/1992

19/08/2009

cannabis

26/08/2009

Hashish oil

undercover policeman, lack of incriminating information

anonymous/unverified tip, undercover policeman, pressure to sell, repeated calls

Astrakhan Regional Court

16/09/2010

15044/11

07/02/2011

Stanislav Yevgenyevich MOROZOV

20/03/1993

19/08/2009

cannabis

26/08/2009

cannabis

anonymous/unverified tip, undercover policeman, pressure to sell, repeated calls

Astrakhan Regional Court

16/09/2010

77167/11

24/11/2011

Viktor Viktorovich SOKOLOV

11/01/1989

Mikhaylova Olga Olegovna

Moscow

18/05/2010

hashish

repeated calls, lack of incriminating information, pressure to sell, fellow drug user

Moscow City Court 01/08/2011

45792/13

12/07/2013

Igor Sergeyevich KLEMIN

06/01/1988

28/07/2012

methamphetamine

fellow drug user, lack of incriminating information, pressure to sell

Supreme Court of the Republic of Tatarstan 11/01/2013

57588/16

14/09/2016

Nikolay Tserenovich SHARLDAYEV

11/06/1983

10/08/2017

cannabis

fellow drug user, lack of incriminating information, repeated calls

Rostov Regional Court 19/04/2016

68832/16

16/11/2016

Roman Vladimirovich GULEVSKIY

25/08/1986

Boyarkina Olga Sergeyevna

Taganrog

01/10/2015

cannabis

fellow drug user, repeated calls, lack of incriminating information, no previous convictions, the informant stated that the applicant had never sold drugs before (they merely consumed them together)

Rostov Regional Court 06/07/2016

34335/17

28/04/2017

Sergey Yevgenyevich GUBAREV

27/04/1989

08/05/2015

heroin

fellow drug user, lack of incriminating information, anonymous/unverified tip

Kaluga Regional Court 28/10/2016

74741/17

13/10/2017

Ignatiy Vasilyevich ZINOVYEV

17/03/1992

Tsiskarishvili Vladlen Aleksandrovich

Moscow

20/08/2016

hashish

lack of incriminating information, pressure to sell, repeated calls, fellow drug user

Moscow City Court 17/04/2017

78718/17

02/11/2017

Valeriy Valeryevich BALMATKOV

12/11/1983

Tsvetkova Nataliya Olegovna

Moscow

12/11/2015

heroin

fellow drug user, repeated calls

Moscow City Court 10/05/2017

79278/17

23/10/2017

Andrey Yuryevich TSIGELMAN

24/01/1991

Shirokov Oleg Valeryevich

Nizhniy Tagil

25/03/2015

AB- Pinaca ( syntetic drug)

repeated calls, fellow drug user

Sverdlovsk Regional Court

04/05/2017

19074/18

05/04/2018

Yegor Aleksandrovich GOLOVANOV

25/09/1990

Kostyushev Vladimir Yuryevich

Moscow

23/03/2017

amphetamine

fellow drug user, lack of incriminating information

Moscow City Court 25/01/2018

21552/18

30/04/2018

Fedor Anatolyevich NISHANOV

08/06/1983

Yunak Stanislav Stepanovich

Vladivostok

09/02/2016

cannabis

repeated calls, lack of incriminating information, fellow drug user, pressure to sell, anonymous/unverified tip

Primorye Regional Court

30/10/2017

8584/19

26/12/2018

Aleksey Andreyevich NOVIKOV

09/10/1996

15/12/2017

hashish

fellow drug user, pressure to sell, lack of incriminating information

Perm Regional Court 12/07/2018

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CASE OF LIVADNIY AND OTHERS v. RUSSIA

CASE OF LIVADNIY AND OTHERS v. RUSSIA

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