CASE OF VANYAN v. RUSSIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 (conviction);Violation of Art. 6-1 and 6-3-c;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
8. The applicant was born in 1971 and lives in Moscow. 9. On 3 June 1998 the applicant was arrested and taken to the Kapotnya district police station in Moscow, where he was searched and found to be in possession of a sachet of heroin. In a decision of 4 June 1998 the head of the Kapotnya district police department held that the applicant had committed an act of petty hooliganism and ordered him to pay an administrative fine. He was released on 5 June 1998, according to his submissions, and on 4 June 1998, according to the Government. On 5 June 1998 criminal proceedings were brought against the applicant on suspicion of procuring and storing drugs. The investigation resulted in the indictment of the applicant for procurement, storage and sale of drugs, punishable under Article 228 § 4 of the Criminal Code. 10. On 2 April 1999 the Lyublinskiy District Court of Moscow convicted the applicant and SZ under Article 228 § 4 of the Criminal Code of having unlawfully procured, stored with a view to their sale and sold drugs in “particularly large” quantities. The applicant was sentenced to seven years’ imprisonment and a confiscation order was made. Further to a medical report, he was ordered to undergo compulsory psychiatric treatment for drug addiction. 11. At the hearing before the District Court the applicant stated that on 2 June 1998 he had telephoned SZ. He asked SZ to obtain drugs for him. SZ said that he would try to do so and they agreed that the applicant would go to SZ’s flat. Shortly afterwards, OZ called the applicant and asked him to buy heroin for her. She complained that she badly needed drugs as she was suffering from withdrawal symptoms. Frightened that she might commit suicide, the applicant agreed and arranged to meet her near the block of flats where SZ lived. They met later in the evening. He received 200 roubles (RUR) from OZ and went to SZ’s flat, where SZ sold him one sachet of heroin at a cost of RUR 300. Since the amount of heroin bought from SZ was insufficient even for his own needs, he decided not to share it with OZ. The applicant further submitted to the court that he had subsequently given OZ a soporific, telling her that the narcotic was of bad quality and that he would repay her money later. As he left, he saw people approaching who were, as he subsequently learned, police officers. He escaped from them, throwing the drugs away. Later that night he returned and found the drugs. The next day, with the drugs still in his possession, he went to work, where he was arrested by the police. They found the drugs in his possession and seized them. 12. The applicant’s codefendant SZ also submitted at the hearing before the District Court that he had sold the applicant one sachet of heroin for RUR 300. 13. The District Court observed that the applicant’s testimony in court differed from that which he had consistently given throughout the pre-trial investigation, when he had pleaded guilty to buying two sachets of heroin from SZ, one for OZ and the other for himself, for RUR 400, of which RUR 200 had been received from OZ. He also admitted that he had repeatedly bought drugs from SZ. Similarly, SZ stated throughout the pretrial investigation that he had sold two sachets of heroin to the applicant for RUR 400. 14. The District Court heard EF and MB, police officers from the criminal investigation department of the Kapotnya district police of Moscow, who submitted that the police had information that the applicant was involved in selling drugs. OZ, who knew the applicant and could obtain drugs from him, was selected to verify that information. She agreed to take part in a “test purchase” of drugs, to be organised by the criminal investigation department. OZ was given RUR 200 in cash for that purpose. She was searched and no narcotics were found on her before her meeting with the applicant. She then made an appointment with the applicant. OZ was placed under permanent surveillance, in the course of which EF and MB saw the applicant and OZ meet, enter the block of flats in which SZ lived and leave the building some time later. OZ gave a previouslyagreed sign indicating that she had purchased drugs from the applicant. The police officers tried to apprehend the applicant but he escaped. OZ was brought to a police station where, in the presence of witnesses, she handed over a sachet of heroin which she claimed had been sold to her by the applicant, who had procured it from SZ. On the following day, the applicant was brought to the Kapotnya district police station, where he was searched and found to be in possession of a sachet of heroin. 15. Witness OZ explained to the District Court that she had voluntarily assisted the police in exposing drug trafficking by the applicant. Her evidence was similar to that of police officers EF and MB. 16. According to expert reports, the substance contained in the sachet handed to the police by OZ was heroin, weighing 0.008 grams, and the substance contained in the sachet found by the police in the applicant’s possession, in the circumstances described above, was also heroin, weighing 0.31 grams. 17. The District Court examined written evidence and statements by other witnesses, including a witness who had seen the applicant with a girl near the block of flats where SZ lived at the time of events in question. 18. The District Court held that statements by the applicant and SZ during the pre-trial investigation were corroborated by witnesses’ testimony, expert opinions and written evidence in the case. It found that all the evidence in the case had been obtained in accordance with the law and that the applicant’s defence rights, including the right to legal assistance, had been properly secured by the investigating authority. It concluded that on 2 June 1998 the applicant had procured two sachets of heroin from SZ, had sold one of them to OZ and had kept the other with a view to its sale. 19. The applicant appealed against the District Court’s judgment of 2 April 1999, complaining of violations of the criminal procedural law at the pre-trial investigation stage, including a violation of his defence rights. He also pointed out the lack of evidence of his guilt in the sale of drugs and asked that his actions be re-classified as the illicit procurement and storage of drugs without intent to sell, punishable under Article 228 § 1 of the Criminal Code. On 17 May 1999 the Moscow City Court upheld the findings of the District Court and dismissed the appeal. It found that the applicant’s guilt had been fully proven by his own statements and the other evidence in the case and that there had been no substantial violations of the criminal procedural law during the pre-trial investigation or at the trial which would require the quashing of the judgment. 20. On 10 November 2000 the Deputy President of the Supreme Court of the Russian Federation lodged an application with the Presidium of the Moscow City Court to review the case in supervisory proceedings (протест). The grounds for the request were that the applicant’s actions should have been classified as the illicit procurement and storage of drugs without intent to sell, punishable under Article 228 § 1 of the Criminal Code. The application called for the judgment of 2 April 1999 and the appeal decision of 17 May 1999 to be amended so that the applicant would be convicted under Article 228 § 1 of the Criminal Code, sentenced to two years’ imprisonment and released from that sentence pursuant to the relevant amnesty law. 21. On 16 November 2000, at the request of the Deputy President of the Supreme Court, the Presidium of the Moscow City Court, composed of seven judges, reviewed the case under the supervisory review procedure (пересмотр в порядке надзора). The applicant and his counsel were not informed of the application for supervisory review or the hearing before the Presidium of the Moscow City Court. They did not attend the hearing. 22. The court heard submissions from an acting public prosecutor of Moscow, who considered it necessary to reclassify the applicant’s actions under Article 228 § 1 of the Criminal Code. 23. The court noted that the applicant had been found guilty under Article 228 § 4 of the Criminal Code, in that he had procured drugs from SZ for RUR 400, with a view to their sale, and had kept “particularly large” quantities in his possession, namely heroin weighing 0.318 grams in two sachets; that he had then sold one sachet containing “particularly large” quantities of heroin – 0.008 grams – to OZ for RUR 200 and had kept the remaining “particularly large” quantity of heroin – 0.31 grams – in his possession until his arrest by police on 3 June 1998. 24. The Presidium of the Moscow City Court held: “... having correctly established the facts of the case, the court gave an incorrect legal assessment thereof in the judgment. In procuring the narcotics for his personal consumption and also for [OZ], at her request and with her money, in storing the narcotics and in handing over part of the heroin to [OZ] and keeping part of it for himself, G.A. Vanyan did not act with a view to selling [drugs] and he did not sell [drugs] but was acting as an accomplice to [OZ], who purchased heroin for her personal consumption.” It maintained that, in those circumstances, the applicant’s actions should be classified under Article 228 § 1 of the Criminal Code as joint participation in the procurement and storage of “particularly large” quantities of drugs without intent to sell. 25. The Presidium of the Moscow City Court held that the judgment of 2 April 1999 and the decision of 17 May 1999 in the applicant’s case should be varied, convicted him under Article 228 § 1 and sentenced him to two years’ imprisonment. It upheld the judgment and decision in the remaining part. With reference to the Amnesty Act of 26 May 2000, the court ordered that the applicant be released from serving his sentence and, consequently, from custody. 26. Section VI, Chapter 30 of the Code of Criminal Procedure of 1960, (Уголовно-процессуальный кодекс РСФСР), in force at the material time, allowed certain officials to challenge a judgment which had entered into force and to have the case reviewed. 27. Pursuant to Article 356 of the Code of Criminal Procedure of 1960, a judgment enters into force and is subject to execution as of the day when the appeal (cassation) instance pronounces its judgment or, if it has not been appealed against, when the time-limit for appeal has expired. “The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not entered into force on cassation appeals].” “The grounds for quashing or changing a judgment on appeal are as follows: (i) prejudicial or incomplete inquest, investigation or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) grave violation of procedural law; (iv) misapplication of [substantive] law; (v) inadequacy of the sentence to the gravity of offence and the convict’s personality.” 28. Article 371 of the Code of Criminal Procedure of 1960 provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their respective Deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review. 29. According to Articles 374, 378 and 380 of the Code of Criminal Procedure of 1960, the request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits, and was not bound by the scope and grounds of the extraordinary appeal. The Presidium could dismiss or uphold the request. If the request was dismissed, the earlier judgment remained in force. If it upheld the request, the Presidium could decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for a fresh court examination at any instance, to uphold a first instance judgment reversed on appeal, or to amend and uphold any of the earlier judgments. 30. Article 380 §§ 2 and 3 of the Code of Criminal Procedure of 1960 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal qualification of a conviction or sentence to the defendant’s benefit. If it found a sentence or legal qualification too lenient, it had to remit the case for a new examination. 31. Under Article 377 § 3 of the Code of Criminal Procedure of 1960, a public prosecutor took part in a hearing before a supervisory review instance. A convicted person and his or her counsel could be summoned if a supervisory review court found it necessary. If summoned, they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing. On 14 February 2000 the Constitutional Court of the Russian Federation ruled that the above provision was incompatible with the federal Constitution where the grounds for supervisory review of a case were to the detriment of a convicted person. 32. Under Article 407 of the new Code of Criminal Procedure of 2001, which entered into force on 1 July 2002, a convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court. They may participate in the hearing provided that they have made a specific request to that effect. 33. Illicit procurement or storage of drugs without intent to sell is punishable under Article 228 § 1 of the Criminal Code of 1996, in force at the material time. Illicit procurement or storage of drugs with intent to sell and the sale of drugs in “particularly large” quantities are punishable under Article 228 § 4 of the Criminal Code. 34. Under Article 84 § 2 of the Criminal Code, convicted persons can be released from punishment by an amnesty act. Under Article 86 § 2 of the Code, a person is considered not to have been convicted if he or she released from punishment. 35. Section 6 of the Operational-Search Activities Act of 1995 lists a number of techniques that may be used by law-enforcement or security authorities for the purposes of, inter alia, investigating and preventing offences. In particular, the police may carry out a “test purchase” (проверочная закупка) where, inter alia, a criminal case has been opened or information concerning the preparation or commission of an offence has become known to the police and the available data are insufficient for bringing criminal proceedings (section 7). The taking of operational-search measures which interfere with individuals’ constitutional rights to respect for their correspondence, telephone communications and home is allowed if authorised, as a general rule, by a court (section 8). The “test purchase” of goods, the free sale of which is prohibited, and certain undercover operations by agents or persons assisting them, are carried out on the basis of a decision sanctioned by the head of an agency engaged in operational-search activities (section 8). Results of operational-search activities can serve as a basis for bringing criminal proceedings and can be used as evidence in accordance with the legislation on criminal procedure (section 11).