IVANOV A OSTATNÍ proti Rusku

THIRD SECTION

CASE OF IVANOV AND OTHERS v. RUSSIA

(Applications nos. 62082/10 and 6 others – see list appended)

JUDGMENT

STRASBOURG

19 July 2022

This judgment is final but it may be subject to editorial revision.

In the case of Ivanov and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Darian Pavli, President,
Peeter Roosma,
Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Russian nationals listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice to the Russian Government (“the Government”) initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights and lately by his successor in that office, Mr M. Vinogradov, of the complaints concerning the police entrapment, covert surveillance and the admitting as evidence of recordings obtained in the course of undercover operation and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 15 March 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1. The applicants in the present seven cases complained that they had been convicted of bribe-related offences which they had committed only because they had been incited to do so by agent provocateurs. Some applicants also complained that they had been subjected to covert surveillance and that the domestic courts had accepted as evidence the material thus obtained.

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

2. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

3. The applicants complained that they had been convicted of bribe‑related offences (soliciting, receiving or offering a bribe) which they had committed only because they had been incited to do so by agent provocateurs during an undercover operation.

4. The Government submitted that the applications brought by the first, second and third applicants should be examined in accordance with the well‑established case law of the Court on the matter. In respect of other applications, they submitted observations in which they contended that no violation of the applicants’ rights had taken place.

5. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

6. The Court has recently reiterated that that the Russian legal system does not provide for adequate and effective legal safeguards for authorising and supervising undercover operations, a structural problem which exposed applicants to arbitrary action by the police and prevented the domestic courts from conducting an effective judicial review of their entrapment pleas (see Kuzmina and Others v. Russia, nos. 66152/14 and 8 others, 20 April 2021, with further references). The present case is identical to other Russian cases on entrapment, in which the Court found in the past violations on account of deficiencies in procedure for authorising undercover operations in the context of investigating offences concerning bribes or illegal distribution of drugs (see Nosko and Nefedov v. Russia, nos. 5753/09 and 11789/10, 30 October 2014; Lagutin and Others v. Russia, nos. 6228/09 and 4 others, 24 April 2014; and Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, 2 October 2012).

7. In particular, having examined the material of the applicants’ case files, the Court considers that the preliminary investigation in their cases was superficial and tainted with the deficiencies in the procedure for authorising the undercover operations which were pointed out by the Court in its cases concerning entrapment cited above and which also left the applicants in the present cases unprotected against arbitrary police action. The undercover operations were ordered by simple administrative decisions of the bodies which later carried out the operations; those decisions contained very little information as to the reasons for and purposes of the planned undercover operations, and the operations were not subjected to judicial review or any other independent supervision. There was no need to justify the decision with relevant details and virtually no formalities to follow (see Kuzmina and Others, cited above, § 101). It also follows from the judgments of the domestic courts, that the issue of incitement was not adequately addressed by the courts and that the judicial review of the applicants’ cases fell short of the standards developed in the Court’s case-law in the light of Article 6 of the Convention. The domestic courts, in particular, either failed to verify the sources of incriminating information or review the reasons for carrying out undercover operations and the circumstances surrounding it; neither did they duly assess the conduct of the police officers and their informers vis-à-vis the applicants for any signs of psychological pressure or possible links between the informers and the police (see Kuzmina and Others, cited above, § 104; and contrast Manelyuk and Others v. Russia [Committee] nos. 40442/07 and 3 others, §§ 34, 38-39 and 40-42, 8 October 2019). The appeal courts, for their part, merely reiterated the reasoning of the first-instance courts and held that the applicants’ pleas were unsubstantiated.

8. Accordingly, the Court finds no reason to depart from its earlier findings on the matter in similar cases and holds that the criminal proceedings against all seven applicants in the present case were incompatible with the notion of a fair trial. Having regard to its well-established case-law on the subject, the Court considers that there has been a violation of Article 6 § 1 of the Convention in respect of each of the seven applicants.

3. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

9. The applicant in application no. 34980/18 also complained under Article 8 about the use of covert audio and video devices during the undercover operation. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it and having regard to its case law on the matter, the Court concludes that it discloses a violation of Article 8 of the Convention (see Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 120-33, 7 November 2017).

4. OTHER COMPLAINTS

10. The applicant in application no. 31415/17 also complained under Article 6 § 1 of the Convention that the domestic courts had accepted as evidence the recordings made as part of covert surveillance during an undercover operation. Having regard to the facts of the case, the submissions of the parties, and its findings above (see paragraphs 6 and 8 above), the Court considers that it has examined the main legal question raised in the present application. It thus considers that this complaint is admissible but that there is no need to give a separate ruling on its merits (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.47848/08, § 156, ECHR 2014).

5. REMAINING COMPLAINTS

11. Lastly, the applicant in application no. 31415/17 raised a complaint under Article 8 of the Convention about the use of covert audio and video devices during the undercover operation. The Court has examined that part of her application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint does not meet the admissibility criteria set out in Article 35 of the Convention. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

JUST SATISFACTION

12. The applicants claimed the amounts indicated in the appended table in respect of pecuniary and non-pecuniary damage and in respect of costs and expenses incurred before the domestic courts and before the Court.

13. The Government submitted that the claims were either excessive or unsubstantiated.

14. The Court notes that that the fine imposed on Mr Ivanov (no. 62082/10) was a penalty incurred by him in connection with the criminal proceedings that the Court has found to have been unfair. The Court therefore awards the amount indicated in the appended table in respect of pecuniary damage to Mr Ivanov. It rejects the claim for pecuniary damages brought by other applicants, having regard to the documents in its possession.

15. Furthermore, the Court reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be a retrial or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV). Given the Court’s findings in Kumitskiy and Others v. Russia, nos. 66215/12 and 4 others, § 17, 10 July 2018, the finding of a violation constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicants in the present cases (see also Zadumov v. Russia, no. 2257/12, §§ 80-81, 12 December 2017).

16. At the same time the Court observes that Mr Romanov (no. 34980/18) sustained non‑pecuniary damage as a result of the violation of his rights under Article 8 of the Convention which cannot be compensated for solely by the finding of violation, and that compensation therefore has to be awarded. Regard being had to the documents in its possession and to its case‑law (see, in particular, Zubkov and Others, cited above), the Court considers it reasonable to award the sum indicated in the appended table to Mr Romanov, in respect of non‑pecuniary damage.

17. The Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-71, 28 November 2017). Accordingly, having regard to the documents in its possession, it awards the sums indicated in the appended table to Mr Ivanov (no. 62082/10) and Ms Stepanova (no. 31415/16) in respect of costs and expenses. The other applicants in the present case did not submit any documents, such as legal services agreements, clearly showing that they had paid or were under a legal obligation to pay the fees charged by their representatives. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed have actually been incurred by those applicants and rejects their claim for costs and expenses (see, among others, Udaltsov v. Russia, no. 76695/11, § 201, 6 October 2020, and Mazepa and Others v. Russia, no. 15086/07, §§ 89-90, 17 July 2018).

18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares admissible the complaints concerning (i) the applicants’ conviction for criminal offences that were incited by the police, (ii) covert surveillance (application nos. 31415/17 and 34980/18), and (iii) accepting as evidence of materials obtained through covert surveillance (application no. 31415/17); and inadmissible the remainder of the application no. 31415/17;
3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all applicants on account of police entrapment;
4. Holds that there is no need to examine the merits of the remaining complaint under Article 6 § 1 of the Convention brought by Ms Stepanova (application no. 31415/17);
5. Holds that there has been a violation of Article 8 of the Convention as regards the complaint raised by Mr Romanov (application no. 34980/18);
6. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants in respect of their complaint under Article 6 § 1 of the Convention about the police entrapment;
7. Holds

(a) that the respondent State is to pay to the applicants concerned the amounts indicated in the appended table, plus any tax that may be chargeable, within three months, in respect of pecuniary and non‑pecuniary damage and in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

8. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 19 July 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Darian Pavli
Deputy Registrar President

APPENDIX

List of cases