CASE OF NOSKO AND NEFEDOV v. RUSSIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicants were both targeted in undercover operations designed to investigate bribe-taking launched by the police under sections 6 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). 6. The facts of each individual criminal case, as submitted by the parties, are summarised below. The factual details of the undercover operations are not in dispute and the applicants admitted that they had received the money in return for promises to render certain services. However, the applicants contested the Government’s position as to the reasons for the undercover operations and the circumstances leading to them. In particular, they contended that they had accepted the money only because the police had incited them to do so, and they would not have done it under any other circumstances. 7. The applicant was born in 1960 and lives in Zarechnyy, in the Penza Region. At the time of her arrest, she was working as a dermatologistvenerologist in the outpatient unit of the municipal hospital in Zarechnyy. 8. According to the Government, the police in Zarechnyy received confidential operational information implicating the applicant in the illegal acceptance of money for issuing and extending false sick-leave certificates. On 19 November 2007 it was decided to conduct an undercover operation targeting the applicant, with the aim of documenting her illegal activity. The police proposed Ms A. to participate in the operation as their agent. 9. According to the applicant, she had not been implicated in any bribetaking prior to the operation and the police had had no grounds to suspect her. On 20 November 2007 her colleague and former fellow classmate from medical school, X, had come to her office while she was seeing patients. He had been accompanied by a young woman, Ms A. He had asked the applicant to provide Ms A. with a sick-leave certificate as she had herpes on her leg. The applicant had examined the woman, confirmed the diagnosis, prescribed treatment and issued the sick-leave certificate. The applicant thought that she had recognised Ms A. as the mother of a girl she had treated on a previous occasion. On 23 November 2007 Ms A. had come to the applicant’s office by herself and the applicant had agreed to extend her sick-leave as her condition had not yet been cured. Ms A. had been given the certificate and had handed 500 roubles (RUB – 11 euros (EUR)) to the applicant. The applicant had taken the money as she thought that Ms A. was offering it as a token of appreciation for having successfully treated her daughter previously. Immediately after Ms A. had left, the police had entered the applicant’s office and asked her and the nurses who were present to show them all the money in their possession. The applicant had taken out her wallet and while the police were searching the office she had remembered about the money that Ms A. had given her. She had become frightened and had moved the money from the pocket of her uniform into her left boot, where the police eventually discovered it. 10. On 26 May 2008 the Zarechenskiy Town Court of the Penza Region examined the applicant’s case. The applicant admitted that she had taken the money because she had thought of it as a gift from a grateful patient. She maintained that the police had incited her to accept the money. In particular, they had sent their agent to her office together with a colleague of hers whom she had known well since their student years in medical school and at whose request she had issued the sick-leave certificate to Ms A. 11. Ms A. testified at the trial that on 19 November 2007 she had agreed to help the police conduct an undercover operation investigating bribetaking. She had telephoned her acquaintance X and told him that she needed a sick-leave certificate to justify her stay at home while she redecorated her flat. X had agreed to help her and she had come to the hospital outpatient unit with him the next day. She had had with her RUB 2,000 (EUR 42) in cash and a recording device given to her earlier by the police. She had given X RUB 500 (EUR 11) for his intermediary services and also RUB 500 (EUR 11) to pay the applicant, who did not examine her at the time but nevertheless issued the sick-leave certificate. On 23 November 2007 she had returned to the applicant’s office. The applicant had not examined her but had extended her sick-leave certificate for RUB 500 (EUR 11) which the applicant had placed in the pocket of her uniform. 12. X testified that Ms A. had repeatedly called him requesting the false sick-leave certificate. He had agreed to help her and had received RUB 500 (EUR 11) from her. He had called several doctors but they had refused to help and he had decided to ask the applicant to issue the certificate. On 20 November 2007 he had come to the applicant’s office and she had handed him the certificate for Ms A. for RUB 500 (EUR 11) without actually examining Ms A. 13. The police officer in charge of the undercover operation also testified at the trial. In particular, he stated that following the receipt of confidential information implicating the applicant in bribe-taking, an undercover operation had been launched to verify and to document the applicant’s unlawful activity. 14. On 26 May 2008 the Zarechenskiy Town Court of the Penza Region granted the prosecutor’s request to drop the charges against the applicant in relation to the episode of 20 November 2007 for lack of evidence. It found the applicant guilty of bribery committed on 23 November 2007 and imposed a suspended sentence of three years in prison with three years’ probation. 15. On 6 August 2008 the Penza Regional Court examined the applicant’s case on appeal and upheld the conviction. The court dismissed the plea of entrapment and held that the police had had good reason to conduct the undercover operation as they were in possession of incriminating information against the applicant which revealed a preexisting intent to commit bribery. 16. The applicant was born in 1951 and lives in Cheboksary, in the Chuvash Republic. At the time of his arrest, he worked as a narcology psychiatrist at a regional narcology centre. 17. The Government submitted that in early 2008 the police had received information which had implicated the applicant and other staff members at the regional narcology centre in the issuance of false forensic medical examination reports in return for monetary consideration. On 17 July 2008 the police decided to conduct an undercover operation in order to expose and document the applicant’s unlawful acts. One of the police officers, Mr Y., was chosen to participate in the undercover operation and to bribe the applicant into altering the results of Mr Y.’s blood test and issuing a false forensic medical report. 18. The applicant contested the Government’s allegations. In particular, he claimed that the incriminating information had been ambiguous and had referred to medical personnel at the local narcology centre in general. It did not specifically identify him as an individual who was taking bribes. Moreover, the police were not in possession of any complaints from persons allegedly aggrieved by his unlawful acts. 19. The applicant further maintained that on 18 July 2008, when he started his shift at the regional narcology centre, traffic police officers had brought Mr Y. to his office for a blood alcohol test. The applicant had conducted preliminary tests that had shown that Mr Y. was under the influence of alcohol. Mr Y. acknowledged that he had drunk some alcohol the day before. Meanwhile, the officer who had accompanied Mr Y. had stepped out of the room and Mr Y. had repeatedly asked the applicant to help him obtain a favourable blood test result as he feared that the alcohol level in his blood would exceed the legal limit and he would have his driving licence revoked. The applicant had categorically refused at first and had sent the applicant to a laboratory for a blood test in the presence of police officers. Mr Y. had then returned to the applicant’s office and resumed his requests for help. He had offered to pay the applicant and had stated that his earnings and ability to support his family depended on his having a driving licence. On 19 July 2008 the applicant had again seen Mr Y. in his office, where he had repeated his requests. The applicant had then agreed to try talking to the laboratory staff and speculated that Mr Y. would need to pay RUB 6,000 (EUR 126) or 7,000 (EUR 147) to the laboratory technician. However, the nurse working in the applicant’s office had commented that at least RUB 10,000 (EUR 210) would be needed, as the laboratory technician would not accept less. Mr Y. had then paid the applicant RUB 10,000. The applicant had used RUB 5,000 (EUR 105) to pay the laboratory technician to alter the results of Mr Y.’s blood test and had paid RUB 1,500 (EUR 32) to the nurse to ensure her confidentiality. On 25 July 2008 the applicant had received a further RUB 4,000 (EUR 84) from Mr Y. and they had agreed on an additional RUB 2,000 (EUR 42) to be paid at a later date. Immediately afterwards, the police had entered the applicant’s office, charged him with abetting bribery and arrested him on the spot. 20. On 29 May 2009 the Moscovskiy District Court of Cheboksary examined the applicant’s case. The applicant testified that he had at first refused to help Mr Y. with his request. He conceded that he had taken the money from Mr Y. but only because Mr Y. had described his difficult personal situation and had strongly urged and incited the applicant to help him. 21. Mr Y. testified that on 18 July 2008 he had consumed 200 grams of vodka in the presence of the police officers who were to participate in the undercover operation. He did not know the name of the applicant at the time. Following some documentary formalities, they all proceeded to the local narcology centre, where the applicant had first established that he tested positive for alcohol. When he and the applicant were alone, he had asked the applicant to tamper with the results of his blood test to prevent him losing his driving licence. The applicant had refused and had sent him off to the laboratory for a blood sample. He had then urged the applicant to help him out once again, had offered him money, and the applicant had at last agreed. On 19 July 2008 he had met the applicant in his office. The applicant had told him that he needed to pay RUB 6,000 (EUR 126) or 7,000 (EUR 147) to the laboratory technician. However, Mr Y. had given RUB 10,000 (EUR 210) to the applicant as the nurse in the applicant’s office had commented that the technician would not take less than that. The applicant had later informed him that the technician would modify the test results accordingly. On 25 July 2008 he had paid RUB 4,000 (EUR 84) to the applicant in addition to the money given earlier and had agreed to pay a further RUB 2,000 (EUR 42) later, at the applicant’s request. 22. The police officer responsible for the undercover operation testified that in early 2008 the police had received information implicating the applicant and other staff members at the regional narcology centre in bribetaking. In July 2008 an undercover operation had been planned and launched with the participation of one of the police officers, Mr Y. In the course of the operation, the applicant had agreed to tamper with the results of a forensic medical test in return for financial remuneration from Mr Y. The undercover operation had been both audio-recorded and videotaped and a body search of the applicant at the end of the operation had revealed that he had marked banknotes on his person. 23. On 29 May 2009 the Moscovskiy District Court of Cheboksary convicted the applicant of abetting bribery and sentenced him to imprisonment for two years and six months and to a three-year ban on federal and municipal employment. The court dismissed the applicant’s plea of entrapment in its entirety as it found that the police had conducted the undercover operation in a lawful manner. The applicant appealed, pleading police incitement to commit the offence of which he was convicted. 24. On 30 July 2009 the Chuvash Regional Court found the applicant’s entrapment claim unsubstantiated and upheld his conviction on appeal.