CASE OF LAGUTIN AND OTHERS v. RUSSIA
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing. 6. The facts of each individual criminal case, as submitted by the parties, are summarised below. The applicants disagreed with the Government on the underlying causes and the circumstances leading to the test purchases, and where this is so both versions are given. As regards the factual details of the covert operations, it is common ground that the applicants knowingly procured drugs in the course of the test purchases. 7. The applicants are brothers. At the time of arrest they were vendors working in a video- and audio-rental kiosk. At the time of lodging their applications they were serving prison sentences in correctional colonies following their criminal conviction in respect of which they lodged these applications. 8. On an unspecified date the Federal Service for Drug Control (ФСKН, the drugs police) received information from an undisclosed source that the applicants were involved in drug dealing. On that basis the police decided that an undercover policeman, X, would infiltrate the group and carry out test purchases of cannabis from the applicants. 9. It is undisputed by the parties that X approached Ivan Lagutin through an acquaintance and asked him whether he could supply him with cannabis. The parties differ as to whether Ivan Lagutin agreed to do so. According to the Government, which relied on X’s testimony, Ivan Lagutin had readily agreed to supply him with cannabis. According to the applicants, he had replied that he did not have any but could ask his dealer who occasionally passed by his kiosk. 10. The applicants contended that after that conversation X had called Ivan Lagutin repeatedly to ask if he had cannabis. Ivan Lagutin thought that X was a drug user, and being a cannabis smoker himself he decided to help him. When the dealer eventually came to the kiosk Ivan Lagutin asked him to supply cannabis for X as well, and when the dealer agreed the applicant called X back to tell him. He bought the cannabis for X with money borrowed from the kiosk cash till which he refunded after X had paid him back. On that occasion it was Viktor Lagutin who had passed the parcel to X at his brother’s request. After that, X had continued to call Ivan Lagutin regularly. In total Ivan Lagutin had bought cannabis for X on three occasions, all of which had been test purchases. 11. The official records of the three test purchases contain the following account. On 16 October 2007 undercover policeman X was assigned to carry out the first test purchase of cannabis from the applicants. He was given 350 Russian roubles (RUB) in banknotes that had been photocopied. He met the applicants at the kiosk, they went inside and he purchased 7.5 grams of cannabis. Ivan Lagutin took the money and Viktor Lagutin handed him a paper bag with the drug inside. He asked the applicants if he could come back for more in future, and they confirmed that he could. Afterwards, he handed the cannabis to the police. The second test purchase took place on 1 November 2007, allegedly following a phone call from Ivan Lagutin telling X that he had obtained the cannabis. After being given RUB 500 that had been photocopied X called Ivan Lagutin to arrange a meeting, picked him up in town and drove to the kiosk where he purchased 7.8 grams of cannabis wrapped in paper. Afterwards, he handed the packet of cannabis to the police. The third test purchase took place on 23 November 2007, this time for RUB 1,000. X pre-arranged it by telephone, then left the money at the kiosk with another vendor and came back later to get the drugs from Ivan Lagutin, who gave him 10 grams of cannabis which X then handed over to the police. 12. The telephone communications between X and the applicants were not recorded or intercepted. 13. On 14 December 2007 the police searched the kiosk and seized 7.6 grams of cannabis wrapped in newspaper and a cut-off plastic bottle with paper foil inside, which was allegedly a device for smoking cannabis. The applicants were arrested and charged with procuring large quantities of narcotic drugs, acting in conspiracy, and illegally possessing drugs. 14. The case was examined at first instance by the Promyshlennyy District Court of Stavropol. The applicants pleaded guilty in part, but claimed that they had committed the crime as a result of police entrapment. They pointed out that there had been no evidence of their prior involvement in drug dealing. They maintained that Ivan Lagutin had only exceptionally agreed to assist X in acquiring the drugs because he believed that he was a cannabis smoker like himself. As regards Viktor Lagutin, he had not been directly involved in the transactions with X, although he knew that his brother had occasionally smoked cannabis. 15. The court cross-examined X, whose identity had been disclosed, and the witnesses, who gave a detailed account of the test purchases. The court also examined the video recordings of the first two test purchases. 16. X testified that he had infiltrated the group in order to verify operational information received by the drugs police concerning the supplying of cannabis. He had approached the applicant at a party asking if it was possible to obtain any, and the applicant had agreed to help. Defence counsel asked whether X had been aware that the law prohibited incitement to commit criminal offences, but the judge rejected the question as irrelevant. 17. The court also cross-examined S, an operations officer who had been in charge of the undercover operation. He testified that the police had received information from an undisclosed source that the applicants were selling drugs. He testified that the information had not come from X, but refused to provide any details on the grounds that it was classified information. He testified that X had been instructed to infiltrate the group but had not been obliged to disclose his methods of undercover work and had not reported back to his superior about the manner of his communications with the applicants prior to, and between, the test purchases. In particular, he did not know and was not interested in how X had come to an agreement with the applicants about supplying the drugs. He did not know whether the transaction had been initiated by X or one of the applicants. 18. On 1 October 2008 the Promyshlennyy District Court of Stavropol convicted the applicants as charged and sentenced Ivan Lagutin to six years’ and Viktor Lagutin to five years’ imprisonment. The applicants appealed, pleading, in particular, police entrapment and alleging that the results of the test purchases had to be excluded from the body of evidence as unlawfully obtained. They contested the allegation that the police had had information indicating that they had previously sold drugs. 19. On 26 November 2008 the Stavropol Regional Court dismissed the appeal, without expressly addressing the allegation of entrapment, and upheld the first-instance judgment. 20. On 28 January 2011 the Deputy Prosecutor of the Stavropol Region lodged a request for supervisory review of the case on the grounds that the operational-search activity against the applicants had ceased to be lawful after the first test purchase, which had yielded sufficient proof of their criminal activity. The Deputy Prosecutor considered that the police should have instituted criminal proceedings immediately after the episode of 16 October 2007 and that therefore the second and third episodes constituted entrapment contrary to the Operational-Search Activities Act. Those episodes should therefore be excluded from the grounds of their conviction. 21. On 16 February 2011 a judge of the Stavropol Regional Court dismissed the prosecutor’s request and refused to reopen the criminal proceedings in the applicants’ case, having dismissed the arguments concerning entrapment. 22. On an unidentified date the Deputy Prosecutor General of the Russian Federation lodged a request for supervisory review of the case on essentially the same grounds. 23. On 26 January 2012 the Presidium of the Stavropol Regional Court granted the request. It found that the first test purchase had been carried out on the basis of operational information that two persons, Ivan and Viktor Lagutin, had been selling cannabis. During the test purchase that information had been confirmed and at the same time the criminal offence had been committed, which was sufficient to bring charges. There had been no need for any further test purchases as these had not been aimed at investigating the chain of supply of drugs. The second and third episodes were therefore to be considered as intentional incitement to commit the drug offences. The evidence relating to those two episodes was declared inadmissible and excluded from the grounds of the applicants’ conviction. Ivan Lagutin’s sentence was commuted to five years and two months’ imprisonment, and Viktor Lagutin’s sentence remained unchanged. 24. The applicant is a drug user. He claims to have become a heroin addict in prison where he was serving his first sentence. At the time of his arrest he was unemployed. At the time of lodging his application he was serving his third prison sentence in a correctional colony following his criminal conviction in respect of which he lodged this application. 25. According to the official version, the drugs police received operational information that the applicant was selling drugs. The Government claimed that the drugs police had been keeping a file on the applicant’s involvement in drug dealing for a year and a half prior to the test purchase. On 18 November 2005 the interception of his mobile phone was authorised by a court. On the basis of that preliminary information, on 25 November 2005 the police decided to carry out a test purchase of heroin from the applicant. It was carried out by a police informant, “Ivanov”, whose identity remained undisclosed in the ensuing proceedings. During the test purchase the applicant sold four packets of heroin and a syringe with heroin to “Ivanov”, who paid him RUB 5,000. 26. According to the applicant, he knew “Ivanov” as a fellow drug addict. On 25 November 2005 “Ivanov” called him to tell that he had RUB 1,000 and was looking to buy heroin with that amount. The applicant told him that his dealer was selling only 5-gram doses for RUB 5,000, that he had only RUB 700 and was suffering from withdrawal symptoms, and suggested sharing a dose between them. “Ivanov” called him back later and told him that he had found RUB 5,000, and they agreed to share the purchase. “Ivanov” brought the money to the applicant’s flat and the applicant asked him to wait outside to avoid crossing with the dealer. When the dealer brought the drug the applicant paid him with “Ivanov’s” cash. He then reimbursed “Ivanov” RUB 700 and they consumed part of the heroin together. “Ivanov” took the remaining heroin away with him. 27. After the test purchase a search was carried out at the applicant’s flat. No money was found, but the police seized an empty sachet with traces of heroin, a piece of cotton wool soaked in heroin and an empty syringe, also with traces of heroin. The applicant was charged with drug trafficking. 28. The Moskovskiy District Court of Cheboksary examined the case at first instance. The applicant denied having been involved in drug dealing. He pleaded guilty to having acquired heroin on behalf of “Ivanov” but explained that he had only done so because of the arrangement to consume it together, as he was suffering from withdrawal symptoms. He alleged that he had committed the offence as a result of entrapment. 29. “Ivanov” was called as a witness and examined during the trial, although his identity was kept secret. He testified that he had called the applicant asking him to supply him with heroin and that he had purchased four sachets of the drug at the applicant’s flat. When cross-examined, “Ivanov” refused to answer the following questions: whether he knew the applicant; whether he knew the applicant’s heroin dealer; whether he knew that the dealer was coming after he had left the money with the applicant; whether it was his initiative to conduct a test purchase from the applicant; whether he had previously bought drugs from the applicant; and whether he had previously been arrested by the drugs police. 30. On 5 May 2006 the first-instance court found the applicant guilty of selling drugs and sentenced him to six years’ imprisonment, having found him to be a serial offender. In its judgment the court relied, among other evidence, on the transcripts of the applicant’s intercepted telephone calls which had taken place between him and “Ivanov” during the transaction on 25 November 2005. It noted that the audio recording had confirmed receipt of the money and that the applicant had given drugs to the informant. 31. The applicant appealed on the grounds, inter alia, that he had been convicted of an offence committed as a result of police entrapment. 32. On 6 July 2006 the Supreme Court of the Republic of Chuvashiya dismissed the applicant’s appeal, upholding, in substance, the first-instance judgment. At the same time it reclassified the offence as attempted sale, having reduced the sentence to five years and eleven months’ imprisonment. 33. On 18 August 2006 the Presidium of the Supreme Court of the Republic of Chuvashiya examined a request by the applicant for supervisory review and decided that the applicant was not a serial offender. It reduced the applicant’s sentence to five years and nine months’ imprisonment and upheld the remainder of the earlier judicial decisions. 34. The applicant is a drug user. At the time of her arrest she was unemployed. At the time of lodging her application she was serving a prison sentence in a correctional colony following her criminal conviction in respect of which she lodged this application. 35. On the night of 6 to 7 October 2007 the drugs police conducted two test purchases whereby the applicant first procured 5 grams of cannabis for police informant “Smirnov” and about one and a half hours later procured 5.8 grams of cannabis for an undercover police officer, “Zhirkov”. The parties differ as to the reasons for ordering the test purchases and as to the circumstances in which the applicant had agreed to procure the drugs. According to the Government, the drugs police had been in possession of operational information from an undisclosed but reliable source that the applicant was trafficking in cannabis. According to the applicant, the police had had no preliminary information about her alleged criminal activity and had ordered the test purchase without a valid reason. She claimed that she had procured drugs for the undercover agents as a result of entrapment. 36. On the basis of the test purchases the applicant was charged with selling drugs. 37. The Sovetskiy District Court of Krasnodar examined the case at first instance. At the trial the policemen and the witnesses testified regarding the test purchases. They all pointed out that during the test purchase the applicant had been in a state of narcotic intoxication. A forensic report also confirmed that at the time of arrest the applicant had been under the influence of opiates. 38. The court asked the prosecutor if the investigating authorities had had any classified information incriminating the applicant. The prosecutor replied that all confidential material relating to the conduct of the test purchase had been disclosed. However, when the court subsequently examined the police officers they testified that, prior to the test purchase, the police had received operational information that the applicant was selling cannabis at RUB 350 per box, but they could not name the source or expand on that information at the hearing because the information remained confidential. 39. “Smirnov” and “Zhirkov” were called as witnesses and were examined during the trial, although their identity was kept secret. 40. “Zhirkov” testified that he had met the applicant in September 2007 and that she had immediately offered to purchase cannabis for him. He had called her back in October 2007 and asked her to supply him with cannabis. She had sold him two sachets for RUB 800 during the test purchase, and he had paid her with banknotes marked with a UV marker pen. He denied having been acquainted with “Smirnov” and also denied the involvement of any intermediary between himself and the applicant. 41. “Smirnov” testified that he was an occasional cannabis smoker and that he had collaborated with the drugs police. He had met the applicant in autumn 2007 and she had asked him if he was taking drugs. He stated that the applicant had offered to buy him drugs but could not remember in what circumstances. He had then reported on her to the drugs police, who had decided to carry out a test purchase in which he would act as a buyer. The transaction had taken place inside the entrance to a block of flats, and the applicant had handed him two sachets of cannabis. When cross-examined, he denied having consumed drugs with the applicant during the test purchase. 42. The applicant alleged that she was a cannabis smoker but had never been involved in drug dealing. She pleaded guilty to having acquired cannabis on behalf of “Smirnov” but explained that she had only done so exceptionally and as result of entrapment. She testified that she had met “Smirnov” when she was renting a room in his flat. She knew that he was a drug user and they had once smoked cannabis together. On one occasion he had told her that he wanted to overcome his addiction to strong drugs and needed some “weed” to ease the withdrawal pains. The applicant could see that he was suffering and out of compassion had agreed to buy cannabis for him from her dealer. On 6 October 2007 she had met “Smirnov” to take the money before going to the dealer, and he had then introduced her to “Zhirkov”, who had also asked for cannabis and complained of withdrawal symptoms. The applicant replied that she could find cannabis for “Smirnov”, but not for “Zhirkov”. Later on the same day she had met “Smirnov” to give him the cannabis that she had purchased for him. They had entered a block of flats so that she could pass it over to him and then “Smirnov” had produced a syringe of heroin and offered it to the applicant. She had accepted, although she was not a heroin user, and “Smirnov” had injected her with it. He had then told her to wait for “Zhirkov” and to pass part of the cannabis to him. Feeling disorientated from the effects of the drug, she had done as she was told and when “Zhirkov” came she had passed him the cannabis and then been arrested. 43. On 5 March 2008 the first-instance court found the applicant guilty of selling drugs and sentenced her to five years and six months’ imprisonment. The applicant appealed, inter alia, on the grounds that she had committed the offence as a result of police entrapment. 44. On 9 April 2008 the Krasnodar Regional Court dismissed the applicant’s appeal, having found, in particular, that there had been sufficient evidence that the applicant had procured drugs on the night of 6 to 7 October 2007. It noted that the police officers had testified that they had received preliminary information that the applicant had been selling drugs. It also found that the police had acted in accordance with the law and therefore rejected the defence of entrapment. It upheld the first-instance judgment. 45. The applicant is a drug user. At the time of his arrest he was working for his father’s company. At the time of lodging his application he was serving a prison sentence in a correctional colony following his criminal conviction in respect of which he lodged this application. 46. On an unspecified date the Kaluga regional office of the drugs police received information from an undisclosed source that the applicant was involved in drug dealing. On that basis the police carried out a test purchase of MDMA pills, commonly known as “ecstasy”, from the applicant. The test purchase was carried out by an undercover police officer acting under the pseudonym of “Azamatov”. 47. According to the Government, “Azamatov” had infiltrated a group of people close to the applicant, all of whom were dealing in and/or using drugs, pretending that he was a drug user himself. The first time he met the applicant and his acquaintance, Ms S., they had told him that they were MDMA users and that they could help if he wanted to buy some, the price of one MDMA pill being RUB 600. They gave him their cell phone numbers. 48. According to the applicant, he was approached by an acquaintance, “Timagin”, with a request to buy some “ecstasy” for him. He knew that Ms S had a contact, a drug dealer, and he asked her to help him purchase four MDMA pills for his friend. “Timagin” picked him up in a car, with another person, “Azamatov”, who was supposedly in need of the drug. They then met Ms S. and she took them to a night club where she met the dealer and purchased four pills for “Azamatov” with the latter’s money (RUB 2,400). 49. The official records of the three test purchases contain the following account. On 2 April 2007 the police officer “Azamatov” was assigned to carry out the first test purchase of the MDMA pills from the applicant. “Azamatov” was given RUB 2,400. The banknote numbers had been noted, but they were not otherwise marked or photocopied. He met the applicant and Ms S. at around midnight the same day, handed the applicant RUB 2,400 and they drove together to a night club where Ms S. left them for a few minutes and returned with a packet containing four pills. “Azamatov” came back to the police station and handed in the pills. It was later established by an expert that only one of the four pills contained an active MDMA ingredient, while the other three did not contain any narcotic substances. 50. The telephone communications between “Azamatov”, the applicant and Ms S. prior to the test purchase were not recorded or intercepted, but an audio recording was made in the course of the transaction, starting at 11.30 p.m. on 2 April 2007. 51. On 12 April 2007 the President of the Kaluga Regional Court authorised the tapping of the applicant’s and Ms S.’s telephones for up to three months. Several recordings were made, the transcripts of which were appended to the case file, but they were not used as evidence during the trial. Transcripts made available to the Court included four conversations during which the applicant spoke about drugs, in jargon. It transpires from those conversations that he and his correspondents lived in constant search of drugs, shared information about their sources and purchased them together from whatever dealer they could find. 52. On 6 June 2007 “Azamatov” called the applicant and asked him to purchase drugs for him. The applicant said that he could not help him, but they agreed to meet. When they met the applicant was arrested and charged with procuring large quantities of narcotic drugs on 2 April 2007 in conspiracy with Ms S. 53. The case was examined at first instance by the Borovskiy District Court of Kaluga Region. The applicant and Ms S. pleaded guilty in part but claimed that the crime they had committed was the result of police entrapment. The applicant pointed out, in particular, that there was no evidence of his prior involvement in drug dealing. He maintained that he had only agreed to assist “Timagin” in acquiring drugs because he had believed that he was an occasional “ecstasy” user, like himself. He had not intended to purchase it for “Azamatov”, but had ended up doing so because of “Timagin’s” manipulation. 54. The court cross-examined “Azamatov” under a procedure whereby his identity was concealed from the participants in the proceedings, except the judge. He testified that his infiltration and the covert operation had been ordered because of the information about the applicant and Ms S. received by the police, but he refused to name the source of that information. He stated that the applicant and Ms S. had told him that they could sell him MDMA pills, but he had never bought any from them prior to the test purchase and had never seen either of them selling drugs to anyone. The court also cross-examined another police officer who had taken part in the test purchase and the witnesses in the investigation who had given details of the test purchase. The court also examined extracts of the recordings made during the test purchases, which were about five minutes long. 55. Ms S. testified at the trial that the applicant had called her at about 10 p.m. on 2 April 2007 and asked her to find some drugs for his friend, who was “unwell”. She had refused to begin with, but in the end he had persuaded her to help. She had called her dealer and found out that he had MDMA pills available. She had called the applicant back and confirmed that they could go and get the pills, and they had driven together to the night club to meet up with the dealer. There had been four people in the car: the applicant, herself, “Azamatov” and “Timagin”. Before she left the car the applicant had given her RUB 2,400 and she had purchased the packet of four pills with that money. She had then returned to the car and handed the packet to “Azamatov”. 56. The applicant’s defence counsel referred in oral pleadings to the guidelines adopted on 15 June 2006 by the Plenary Supreme Court of the Russian Federation on jurisprudence in criminal cases involving narcotic drugs or psychotropic, strong or toxic substances. He claimed, in particular, that it had not been established that the applicant had intended to engage in drug trafficking prior to being contacted by the undercover agent, or that he had carried out any preparatory steps to the commission of the offence. 57. On 7 February 2008 the Borovskiy District Court of Kaluga Region convicted the applicant as charged and sentenced him to five years and six months’ imprisonment. 58. The applicant appealed. He reiterated his plea of entrapment and claimed, inter alia, that the police had no information suggesting that he had previously sold drugs. He also complained that the authorities had not made any attempts to find and question “Timagin”, who had played a key role in the test purchase and could have cast light on the role of the police in the offence he had committed. He claimed that the first-instance court had failed to follow the guidelines adopted by the Plenary Supreme Court of the Russian Federation on 15 June 2006. 59. On 1 July 2008 the Kaluga Regional Court upheld the first-instance judgment. It did not address the plea of entrapment, having limited itself to the finding that the applicant’s conviction had been lawful and well founded. It also noted that the undercover operation had been based on preliminary information indicating that the applicant was involved in drug dealing.