CASE OF VOLKOV AND ADAMSKIY v. RUSSIA
Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Legal assistance of his own choosing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
6. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of counterfeit software under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). The operations led to their criminal conviction for distribution of counterfeit software. 7. On 6 December 2007 an undercover police officer V called the applicant on the number advertised by him on a job-advertisement site on the Internet and asked him to perform some computer repairs, including the installation of software. The applicant agreed, bought several compact discs with counterfeit software on them and installed the software on V’s computer for 3,300 roubles (RUB) (about 45 euros (EUR)). The relevant part of the recording of the applicant’s conversation with V in the course of the repairs read as follows: “... V: how much will [the installation] cost approximately? Mr Volkov: I don’t know exactly, [it] depends on the programmes to be installed. V: [I need] Photoshop, [Windows] XP etc. Mr Volkov: with Photoshop, it is 200 roubles more. V: We called other companies; they said it would cost about twenty thousand. Why are the prices so different? ... Mr Volkov: [other companies] are probably being careful, unlike me, I come instantly. They are probably afraid of getting caught; they may have done it before and run into some inspection. V: What kind of inspection? Mr Volkov: [Licensing] inspection, if I installed a licensed programme for you, it would cost a lot. V: How much does the licensed programme cost? Mr Volkov: Photoshop is 500 dollars. V: To install? Mr Volkov: No, the programme itself. ... if it is done like now, in a semi-legal way, the price is obviously lower ...” 8. Following the above, the applicant was charged with copyright infringement. The applicant retained a lawyer during the pre-trial proceedings but could no longer afford paying for legal representation in court. He was therefore provided with a legal aid lawyer. 9. On 3 July 2008 the Golovinskiy District Court of Moscow (District Court) examined the applicant’s case. The applicant testified that he had agreed to help V because he had already performed similar services for his relatives and acquaintances. He also testified that V had asked him to have some programmes installed but did not indicate whether V had specifically asked for unlicensed software. V testified that the police had launched an undercover operation after they had received information incriminating the applicant in the distribution of counterfeit software. The applicant pleaded not guilty to copyright infringement and claimed that the police had incited him to commit the crime. The court found the applicant guilty of copyright infringement and imposed a suspended sentence of one year and three months’ imprisonment with one year’s probation. 10. The applicant lodged an appeal (кассационная жалоба) asking the appellate court (кассационный суд) to examine the case in his presence. In his appeal, he did not request to have a lawyer appointed for the hearing of his case. 11. On 6 August 2008 the Golovinskiy District Court of Moscow informed by post and telephone Ms D., the applicant’s lawyer in the proceedings before the District Court, that the hearing of the applicant’s appeal had been scheduled for 20 August 2008. The court’s call log indicated that the applicant had no retainer agreement with Ms D. for representation in the appeal proceedings. 12. On 20 August 2008 the Moscow City Court dismissed the applicant’s arguments on appeal and upheld his conviction. The applicant was present at the hearing. However, Ms D. did not appear and the applicant did not have any other lawyer to represent him during the appeal hearing. It is not clear whether the applicant requested to have the hearing adjourned or to have replacement counsel appointed. 13. On 10 December 2008 an undercover police officer M called the number advertised by the applicant in the computer-repairs section of a newspaper and asked him to install several computer programmes. The applicant, who was in financial need at the time, downloaded several unlicensed programmes from the Internet and installed them on M’s computer the next day for RUB 3,000 (about EUR 40). The relevant part of the recording of the applicant’s conversation with M in the course of the repairs read as follows: “... M: how much does [this programme] cost? Mr Adamskiy: I did not buy it. M: You did not? Mr Adamskiy: To buy means to go bankrupt. M: [did you get it] from the Internet? Or some other way? Mr Adamskiy: Got it through my peers, [it was] cracked ... M: I don’t really understand this stuff ... If I install it at work, will I get arrested? Mr Adamskiy: I think it is obvious. I would not let any inspections in while the data is downloading. M: ...why? What can happen? Mr Adamskiy: just warning, I personally would not [let anyone inspect]. M: what would happen? ... Do they inspect more often? Mr Adamskiy: yes ... M: will we get jailed? Mr: Adamskiy: No, if it is kept quiet ...” 14. Following the above, the applicant was charged with copyright infringement. On 28 September 2009 the Timiryazevskiy District Court of Moscow examined the applicant’s case. At the trial, the applicant did not claim that M had asked him to have unlicensed software installed. He also confirmed that he had informed M in the course of the installation that the software had been counterfeit. M testified that the police had received information implicating the applicant in the distribution of counterfeit software and had decided to verify that information. The applicant pleaded guilty to copyright infringement but claimed that the police had incited him to commit the crime. The court convicted the applicant and imposed a suspended sentence of one year and six months’ imprisonment with one year’s probation. 15. On 16 November 2009 the Moscow City Court upheld the applicant’s conviction and sentence on appeal.