CASE OF BANNIKOVA v. RUSSIA
No violation of Art. 6-1
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev
5. The applicant was born in 1973 and lives in Kursk. 6. In the period between 23 and 27 January 2005 the applicant, in a series of telephone conversations with S., agreed that he would supply her with cannabis which she would then sell. These telephone conversations were recorded by the Federal Security Service (“FSB”). 7. On 28 January 2005 S. brought the cannabis to the applicant. She mixed it with cannabis she already had at home and packed it into three separate plastic bags, then wrapped them together in one parcel. 8. On the same day the acting chief of the Kursk Regional Department of the FSB authorised an undercover operation in the form of a test purchase under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). On the following day an undercover FSB agent, B., acting as a buyer, met the applicant and purchased 4,408 g of cannabis from her. Banknotes marked with a special substance were used for the purchase. The FSB also made a video and audio recording of the test purchase. After the transaction the applicant was arrested and the marked money was found on her. Her home was searched afterwards, and there she handed in another bag of cannabis weighing 28.6 g. 9. On 24 November 2005 the Leninskiy District Court of Kursk examined the case. The applicant pleaded guilty of having assisted B. in the acquisition of cannabis, but claimed that she had been induced by B. to commit the offence and that she would not have committed it without his intervention. 10. The applicant submitted at the trial that she had a close relationship with S. On one occasion in September 2004 he had left a bag containing dry herb at her home. She had then shown the substance to a neighbour who she knew was a drug addict and he had recognised it as cannabis. A few days later she had been approached by a certain Vladimir, previously unknown to her, who had said that he knew that she had “stuff” and that he could arrange a large-scale deal (“200 cups”) with a customer he knew. She had mentioned this offer to S., who had told her that he could pick up the requisite amount and asked her to find out the price. According to the applicant, at some stage Vladimir had started calling her, harassing her into selling cannabis and making threats should she refuse to do so. She had called S. several times before 28 January 2005, when he had finally brought the cannabis to her. On 29 January 2005 she had received a phone call from the “customer” (the undercover agent B.) and they had arranged for the sale. 11. S. testified at the trial that the applicant had called him in October or November 2004 and suggested a deal whereby he would supply her with a “large consignment” of cannabis which she would then sell. In November 2004 he had picked up some wild marijuana plants and dried them in his attic. On 23 or 24 January 2005 the applicant had called him, asking whether he had prepared the consignment, and said that she had customers waiting. They had decided to sell the cannabis at 300 roubles per cup; according to S., the price was suggested by the applicant. S. also testified that the applicant had told him that she had received threats pressuring her into selling the cannabis. 12. Other evidence examined by the court included: – witness testimonies by B., the undercover agent, and K., the FSB agent who took part in the test purchase, on the events of 29 January 2005: the details of the test purchase, the applicant’s arrest and the ensuing investigative measures; – witness testimonies by Kr. and Kh., the attesting witnesses, concerning the applicant’s arrest on 29 January 2005 and the inspection of the marking agent found on her hands and banknotes; – the FSB reports relating to the test purchase, the search and the objects seized; – forensic evidence and reports on the inspection of the seized substance; these confirmed that the bag contained 4,408 g of cannabis, an amount corresponding to 2,204 average doses of cannabis; the substance seized at the applicant’s home was 28.8 g of cannabis; – the transcripts and the related reports on the telephone conversations between the applicant and S. in which they had discussed the details of the planned sale; – witness testimonies by the applicant’s mother that the applicant had received threats pressuring her into selling drugs and that she had continued to receive calls and threats after her arrest; and – witness testimonies by the police officers who had received a complaint from the applicant’s mother concerning the harassment by telephone. 13. On the basis of the above evidence, the court found the applicant guilty of having sold cannabis to B. on 29 January 2005. As regards the alleged incitement, the court considered that S.’s testimonies concerning the threats received by the applicant were an attempt to help her and decided that there was insufficient evidence of any threats or pressure on the applicant to sell drugs. The court convicted the applicant on a conspiracy charge involving plans to sell a particularly large consignment of narcotic drugs under Article 228.1 § 3 (статья 228.1 ч 3 «г») of the Criminal Code and sentenced her to four years’ imprisonment. The court relied on the applicant’s partial confession, oral testimonies by the FSB officers who had conducted the test purchase and by attesting witnesses, forensic evidence and reports on the inspection of the seized substance. Her accomplice S. was also convicted of the same offence. 14. The applicant appealed, relying, inter alia, on the decisive role of the incitement in her committing the crime and on her inability to access the evidence from the investigation. She alleged, in particular, that there existed recordings of her telephone conversations with the FSB agents prior to the test purchase and asked for T., the FSB agent supposedly involved in the telephone tapping, to be called as a witness. She also complained that the court had not examined the video and audio recording of the test purchase. 15. On 24 January 2006 the Kursk Regional Court dismissed the applicant’s appeal. The court rejected the applicant’s argument concerning the incitement by State agents on the grounds that her participation in the drug sale on 29 January 2005 had been established on the basis of multiple items of evidence and was not denied by her. The appeal court upheld the first­instance judgment, holding, in particular: “As regards the arguments [contained in the applicant’s appeal] concerning the unfounded dismissal of [her] request to obtain the audio recordings of the telephone conversations between [her] and the FSB agents, and to cross-examine the FSB agent [T.] on that point, the case file contains no proof that any such recordings have been made under a procedure established by law. As regards the arguments [contained in the applicant’s appeal] concerning the unfounded dismissal of [her] request to obtain the video and audio recordings of the test purchase of the drugs by the FSB agents, it is not necessary to examine them since [the applicant] accepted in her pleadings that she had sold the drugs during such a test purchase, and her account of the circumstances is corroborated by other evidence and facts established by the court. In particular, it follows from the transcripts of the [applicant’s] telephone conversations with [S.] that during these conversations they discussed occasions of previous sales of narcotic drugs, the remaining unsold stock of narcotic drugs, the emergence of new customers and the prospects of carrying out another sale together ... S. was conveying information on prices for narcotic drugs”. 16. Article 228.1 of the Criminal Code (as in force at the material time) provided that the unlawful sale of narcotic drugs or psychotropic, strong or toxic substances carried a sentence of four to eight years’ imprisonment; the same offence involving a large quantity of drugs or committed by a group of persons acting in conspiracy carried a sentence of up to twelve years’ imprisonment; the same offence involving a particularly large quantity of drugs carried a sentence of up to twenty years’ imprisonment (Article 228.1 § 3 (d)). 17. On 15 June 2006 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 14) on jurisprudence in criminal cases involving narcotic drugs or psychotropic, strong or toxic substances. The Plenary ruled, in particular, that any sale of such substances, if carried out in connection with a test purchase under the Operational-Search Activities Act, should carry charges of attempted sale (Article 30 § 3 in conjunction with Article 228.1 of the Criminal Code). It also set out the following conditions on which the results of the test purchase could be admitted as evidence in criminal proceedings: (i) they must have been obtained in accordance with the law; (ii) they must demonstrate that the defendant’s intention to engage in trafficking of illegal substances had developed independently of the undercover agents’ acts; and (iii) they must demonstrate that the defendant had carried out all the preparatory steps necessary for the commission of the offence. 18. The Operational-Search Activities Act of 12 August 1995 (no. 144­FZ) provided at the material time as follows: “An operational-search activity is a form of overt or covert activity carried out by operational divisions of State agencies authorised by this Act (hereinafter ‘agencies conducting operational-search activities’) within the scope of their powers, with a view to protecting life, health, the rights and freedoms of individuals and citizens or property, and ensuring public and State security against criminal offences.” “The aims of operational-search activities are: – to detect, prevent, intercept and investigate criminal offences as well as searching for and establishing the persons who are planning or committing or have committed them; ...” “... A person who considers that an agency conducting operational-search activities has acted in breach of his or her rights and freedoms may challenge the acts of that agency before a superior agency conducting operational-search activities, a prosecutor’s office or a court. ...” “In carrying out investigations the following measures may be taken: ... 4. test purchase; ... 9. supervision of postal, telegraphic and other communications; 10. telephone interception; 11. collection of data from technical channels of communication; 12. operational infiltration; 13. controlled supply; 14. operational experiments. ... Operational-search activities involving supervision of postal, telegraphic and other communications, telephone interception through [telecommunications companies], and the collection of data from technical channels of communication are to be carried out by technical means by the Federal Security Service, the agencies of the Interior Ministry and the regulatory agencies for drugs and psychotropic substances in accordance with decisions and agreements signed between the agencies involved. ...” “[Operational-search activities may be performed on the following grounds;] ... 1. pending criminal proceedings; 2. information obtained by the agencies conducting operational-search activities which: (1) indicates that an offence is being planned or that it has been already committed, or points to persons who are planning or committing or have committed it, if there are insufficient data for a decision to institute criminal proceedings; ...” “Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning: 1. the appearance that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory; 2. persons who are conspiring to commit, or are committing, or have committed an offence whose investigation is mandatory; ... Test purchases ..., operational experiments, or infiltration by agents of the agencies conducting operational-search activities or individuals assisting them, shall be carried out pursuant to an order issued by the head of the agency conducting operational­search activities. Operational experiments may be conducted only for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons who are planning or committing or have committed a serious crime. ...” “The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused. ... The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons. ...” “To pursue their aims as defined by this Act, the agencies conducting operational­search activities may create and use databases and open operational registration files. Operational registration files may be opened on the grounds set out in points 1 to 6 of section 7(1) of this Act ...” “Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...” On 24 July 2007 section 5 of the Act was amended by prohibiting the agency conducting operational-search activities from directly or indirectly inducing or inciting the commission of offences. 19. The Council of Europe’s instruments on the use of special investigative techniques are outlined in Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR 2008-...). 20. Article 125 of the Code of Criminal Procedure of the Russian Federation, in force from 1 July 2002, provided at the material time that orders of an interrogator, investigator or prosecutor that were capable of encroaching on the constitutional rights and freedoms of participants in criminal proceedings or obstructing their access to justice could be challenged before a court whose jurisdiction covered the place of the investigation. Subsequent changes in the Code added the head of the investigating authority to the list of officials whose acts could be challenged. 21. On 10 February 2009 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 1) on the practice of judicial examination of complaints under Article 125 of the Code of Criminal Procedure of the Russian Federation. The Plenary ruled, inter alia, that decisions by the officials of agencies conducting operational-search activities must also be subject to judicial review under the provisions of Article 125 if the officials were acting pursuant to an order by an investigator or the head of the investigating or interrogating authority. 22. The Code of Criminal Procedure provides, in so far as relevant: “1. Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings]. ...” “... 5. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial. ...”