12233/10;59534/10;10424/11;11945/11;15044/11;77167/11;45792/13;57588/16;68832/16;34335/17;74741/17;78718/17;79278/17;19074/18;21552/18;8584/19

THIRD SECTION CASE OF LIVADNIY AND OTHERS v. RUSSIA (Applications nos. 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 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. In application no. 59534/10, the applicant also raised another complaint under Article 6 of the Convention. THE LAW 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 6.  The applicants 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 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. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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, Decides to join the applications; Declares the applications admissible; Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning entrapment by State agents; Holds that there has been a violation of the Convention as regards the other complaint raised under well-established case-law of the Court (see appended table); Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. 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 could 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   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