Lexploria

THIRD SECTION

CASE OF KLIMOV AND OTHERS v. RUSSIA

( Application no. 22625/07 and 8 others -

see appended list )

JUDGMENT

STRASBOURG

30 November 2017

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

In the case of Klimov and Others v. Russia ,

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

Luis López Guerra, President, Dmitry Dedov, Jolien Schukking , judges, and Liv Tigerstedt , Acting Deputy Section Registrar ,

Having deliberated in private on 9 November 2017 ,

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 applications were communicated to the Russian Government (“the Government”).

THE FACTS

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

4. The applicants complained that they had been unfairly convicted of drug offences following entrapment by State agents .

THE LAW

I. JOINDER OF THE APPLICATIONS

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

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

6. The applicants complained that they had been unfairly convicted of drug offences which they had been incited by State agents to commit and that their plea of entrapment had not been properly examined in the domestic proceedings. They relied on Article 6 § 1 of the Convention, which reads as follows:

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 applicants were incompatible with a notion of a fair trial.

10. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

11. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

12. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Veselov and Others v. Russia, nos. 23200/10 and 2 others, 2 October 2012; Mamontov and Others v. Russia, nos. 46796/06 and 2 others, 21 June 2016; and Akulin and Others v. Russia, nos. 14313/07 and 8 others, 22 March 2016), the Court considers it reasonable to award the sums indicated in the appended table.

13. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning entrapment by State agents ;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 30 November 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Luis López Guerra

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 name

Date of birth

Representative name and location

Type of drugs

Test purchase date

Specific grievances

Final domestic judgment (appeal court, date)

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant

(in euros) [1]

22625/07

06/04/2007

Nikolay Nikolayevich Klimov

06/12/1959

Kriventsov

Valeriy Alekseyevich

Teploye

Cannabis

02/11/2004

undercover policeman, pressure to sell, lack of incriminating information

Cassation appeal decision, Tula Regional Court, 25/10/2006

3,230

14218/08

06/02/2008

Oleg Vladimirovich Dyadyura

15/05/1975

Karpinskiy

Roman Sergeyevich

Moscow

Heroin

16/04/2007

lack of incriminating information, pressure to sell, repeated calls

Moscow City Court,

12/09/2007

3,000

12509/09

02/02/2009

Dmitriy Aleksandrovich Donskoy

21/03/1988

Dobrovolskaya Svetlana Igorevna

Moscow

Amphetamin

08/09/2008

lack of incriminating information, repeated calls, fellow drug user

Moscow City Court

19/01/2009

3,000

3154/11

13/12/2010

Sergey Mikhaylovich Kovalev

15/02/1983

Heroin

22/10/2009, 7/11/2009 and 26/11/2009

fellow drug user, repeated calls

Rostov Regional Court,

29/09/2010

3,000

21968/12

10/02/2012

Nikita Vasilyevich Isekenov

02/01/1985

Dobrodeyev

Aleksey Vladimirovich

St Petersburg

Methylfentanyl

18/03/2009

fellow drug user, repeated calls, undercover policeman

Appellate cassation decision,

St. Petersburg City Court, 10/08/2011

3,000

16340/13

14/02/2013

Maksim Alekseyevich Mikhaylov

08/06/1989

Spiridonov

Vyacheslav Leonidovich

Novocheboksarsk

Hashish

20/01/2011

fellow drug user

Presidium of the Supreme Court of the Chuvash Republic,

12/10/2012

3,000

30203/13

02/04/2013

Roman Sergeyevich Zhdanov

31/01/1977

Heroin

10/08/2012

fellow drug user, lack of incriminating information, repeated calls

Appellate decision, Krasnoyarsk Regional Court, 9/07/2013

3,000

69862/13

09/10/2013

Ilshat

Ilsurovich Mingazov

09/10/1980

Spice

03/10/2012

repeated calls, fellow drug user, lack of incriminating information

Supreme Court of

the Tatarstan Republic, 31/05/2013

3,000

28992/14

25/03/2014

Andrey Aleksandrovich Artauz

29/10/1975

Khlebnikov

Aleksandr Leonidovich

Levokumskoye

Hashish oil

16/04/2013

lack of incriminating information

Stavropol Region Court, 15/01/2014

3,000

[1] Plus any tax that may be chargeable to the applicants.

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CASE OF KLIMOV AND OTHERS v. RUSSIA

CASE OF KLIMOV AND OTHERS v. RUSSIA

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