EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF VANYAN v. RUSSIA
(Application No. 53203/99)
JUDGMENT <*>
(Strasbourg, 15.XII.2005)
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Vanyan v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 24 November 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 53203/99) 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 a Russian national, Grigoriy
Arkadyevich Vanyan ("the applicant"), on 16 November 1999.
2. The applicant, who had been granted legal aid, was
represented by Ms M. Voskobitova and Ms K. Moskalenko, lawyers
with the International Protection Centre in Moscow. The Russian
Government ("the Government") were represented by Mr P.A. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
3. The applicant alleged, in particular, that he had been
convicted of an offence incited by the police through OZ, an
individual acting on their instructions, and that his case had
been reviewed by the Presidium of the Moscow City Court in his
absence.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a decision of 13 May 2004, the Court declared the
application partly admissible.
6. The applicant and the Government each filed observations on
the merits (Rule 59 з 1). The Chamber decided, after consulting
the parties, that no hearing on the merits was required (Rule 59 з
3 in fine).
7. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1971 and lives in Moscow.
A. Initial criminal proceedings
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 з 4 of the Criminal Code.
10. On 2 April 1999 the Lyublinskiy District Court of Moscow
convicted the applicant and SZ under Article 228 з 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 co-defendant 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 pre-trial 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
previously-agreed 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 з 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.
B. Supervisory review proceedings
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 з 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 з 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 з 1 of the Criminal
Code.
23. The court noted that the applicant had been found guilty
under Article 228 з 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 з 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
з 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.
II. Relevant domestic law
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.
Article 379. Grounds for setting aside judgments which have
entered into force
"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]."
Article 342. Grounds for quashing or changing judgments [on
cassation appeal]
"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 зз 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 з 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 з 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 з
4 of the Criminal Code.
34. Under Article 84 з 2 of the Criminal Code, convicted
persons can be released from punishment by an amnesty act. Under
Article 86 з 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).
THE LAW
I. The government's preliminary objection
36. The Government stated that the proceedings before the
Presidium of the Moscow City Court were brought as a result of the
Court's communication of the present application. Those
proceedings involved no fresh charge against the applicant.
Instead, they changed the legal assessment of the applicant's
actions by classifying them as a less serious drug offence.
Referring to those proceedings and to the decision of 16 November
2000, the Government submitted that the applicant's amended
conviction had not been based on the evidence obtained as a result
of the police intervention. He was convicted solely of obtaining
drugs for his personal use, which is something that he would have
done irrespective of the police involvement. Furthermore, in
application of an amnesty act, the same decision released the
applicant from serving his sentence. The Government therefore
claimed that the applicant could no longer be regarded as a victim
of a conviction resulting from the alleged police entrapment.
37. The applicant maintained his complaint under Article 6 of
the Convention with regard to his conviction on the charge
involving OZ, which he alleged had been brought about by the
police. He argued that the decision of 16 November 2000 contained
neither an acknowledgment of nor a redress for that violation of
the Convention. The applicant further complained under Article 6
of the Convention that the proceedings before the Presidium of the
Moscow City Court were unfair in that, unlike the prosecution, he
had not been given an opportunity to participate therein.
38. The Court reiterates that, in order to deprive an
individual of his or her status as a "victim", the national
authorities have to acknowledge, either expressly or in substance,
and then afford redress for, the breach of the Convention (see
Amuur v. France, judgment of 25 June 1996, Reports of Judgments
and Decisions (Reports) 1996-III, p. 846, з 36).
39. The Court observes that the applicant was initially
convicted by the Lyublinskiy District Court of Moscow's judgment
of 2 April 1999 of, inter alia, the procurement and sale of heroin
to OZ, an offence which had allegedly been committed as a result
of police incitement, and sentenced to seven years' imprisonment.
The judgment was upheld by the Moscow City Court on 17 May 1999. A
year and a half later the case was reopened under the supervisory
review procedure. As a result of the review of the case, the
Presidium of the Moscow City Court, in its decision of 16 November
2000, changed the applicant's conviction on a charge of
procurement and selling heroin to OZ to that of acting as "an
accomplice to OZ, who purchased heroin for her personal
consumption". It classified the applicant's actions under Article
228 з 1 of the Criminal Code as joint participation in the
procurement and storage of "particularly large" quantities of
drugs, without intent to sell. It sentenced the applicant to two
years' imprisonment and applied an amnesty act releasing him from
serving that sentence.
40. On the facts of the case, the Court cannot agree with the
Government's statement that the applicant's amended conviction was
based solely on evidence which was not obtained as a result of
police actions. However, of even greater relevance is the fact
that there is nothing in the Presidium of the Moscow City Court's
decision to suggest that it examined the issue of police
incitement in the applicant's case and considered whether and to
what extent such incitement could have impaired the fairness of
the proceedings.
41. In so far as the Government may be understood to claim that
the amnesty law had a decisive effect on the applicant's status as
a "victim", the Court observes that the same decision of 16
November 2000 applied an amnesty law as a result of which the
applicant was released from serving the sentence imposed by the
Presidium of the Moscow City Court. However, the conviction and
the sentence imposed by the Presidium of the City Court concerned
the same facts or the same actions by the applicant as those on
which the initial conviction was based in the judgment of 2 April
1999, as upheld by the decision of 17 May 1999. Following the
latter decision, the applicant was imprisoned for at least a year
and a half before being released under the amnesty. In those
circumstances, the Court finds that the applicant cannot be said
to have been relieved of any effects to his disadvantage as a
result of the granting of an amnesty (see Correia de Matos v.
Portugal (dec.), No. 48188/99, ECHR 2001-XII).
42. In view of the above considerations, the Court dismisses
the Government's preliminary objection. Accordingly, the applicant
can still claim to be a "victim", within the meaning of Article 34
of the Convention, of the alleged violation of Article 6 of the
Convention in respect of police incitement.
II. Alleged violation of Article 6 of the Convention
43. The applicant complained under Article 6 of the Convention
that, in so far as it concerned the charge involving OZ, he had
been convicted of an offence which had been incited by the police
and that his conviction was based on evidence from the police
officers involved and from OZ, an individual acting on their
instructions. Article 6, in so far as relevant, provides:
"1. In the determination of... any criminal charge against him,
everyone is entitled to a fair... hearing... by [a]...
tribunal..."
44. The Government submitted no observations on the merits of
the complaint.
45. The Court reiterates that, according to Article 19 of the
Convention, its duty is to ensure the observance of the
engagements undertaken by the Contracting States to the
Convention. In particular, it is not its function to deal with
errors of fact or of law allegedly committed by a national court
unless and in so far as they may have infringed rights and
freedoms protected by the Convention. While Article 6 guarantees
the right to a fair hearing, it does not lay down any rules on the
admissibility of evidence as such, which is therefore primarily a
matter for regulation under national law (see Schenk v.
Switzerland, judgment of 12 July 1988, Series A No. 140, p. 29, зз
45 - 46, and, for a more recent example in a different context,
Teixeira de Castro v. Portugal, judgment of 9 June 1998, Reports
1998-IV, p. 1462, з 34). The question which must be answered is
whether the proceedings as a whole, including the way in which the
evidence was obtained, were fair (see Allan v. the United Kingdom,
No. 48539/99, з 42, ECHR 2002-IX).
46. The Convention does not preclude reliance, at the
investigation stage of criminal proceedings and where the nature
of the offence so warrants, on sources such as anonymous
informants. However, the subsequent use of their statements by the
court of trial to found a conviction is a different matter. The
use of undercover agents must be restricted and safeguards put in
place even in cases concerning the fight against drug trafficking.
The requirements of a fair criminal trial under Article 6 entail
that the public interest in the fight against drug trafficking
cannot justify the use of evidence obtained as a result of police
incitement (see Teixeira de Castro v. Portugal, cited above, pp.
1462 - 1463, зз 35 - 36).
47. Where the activity of undercover agents appears to have
instigated the offence and there is nothing to suggest that it
would have been committed without their intervention, it goes
beyond that of an undercover agent and may be described as
incitement. Such intervention and its use in criminal proceedings
may result in the fairness of the trial being irremediably
undermined (see Teixeira de Castro, cited above, pp. 1463 - 1464,
зз 38 - 39).
48. The Court observes that the proceedings in the present case
ended with a decision of the Presidium of the Moscow City Court of
16 November 2000, by which the applicant was convicted under
Article 228 з 1 of the Criminal Code of joint participation in
procuring heroin from SZ and storing it without intent to sell. As
regards the amount of heroin - 0.008 grams - which the applicant
was found to have procured for OZ at her request, the Presidium of
the Moscow City Court held that the applicant had acted as an
accomplice to OZ, who had purchased heroin for her personal
consumption. The Presidium of the Moscow City Court underlined
that the Lyublinskiy District Court of Moscow in its judgment of 2
April 1999 had correctly established the facts of the case.
49. The Court notes that the applicant's complaint concerns
only the conviction relating to the episode involving OZ. It
observes that OZ acted on police instructions. She agreed to take
part in the "test purchase" of drugs in order to expose drug
trafficking by the applicant, and asked him to procure drugs for
her. There is no evidence to suggest that before the intervention
by OZ the police had reason to suspect that the applicant was a
drug dealer. A mere claim at the trial by the police to the effect
that they possessed information concerning the applicant's
involvement in drug-dealing, a statement which does not seem to
have been scrutinised by the court, cannot be taken into account.
The police had not confined themselves to investigating the
applicant's criminal activity in an essentially passive manner.
There is nothing to suggest that the offence would have been
committed had it not been for the above intervention of OZ. The
Court therefore concludes that the police incited the offence of
procuring drugs at OZ's request. The applicant's conviction for
joint participation in the procurement and storage of heroin, in
so far as his procuring the narcotics for OZ is concerned, was
based mainly on evidence obtained as a result of the police
operation, including the statements by OZ and police officers EF
and MB. Thus, the police's intervention and the use of the
resultant evidence in the ensuing criminal proceedings against the
applicant irremediably undermined the fairness of the trial.
50. There has therefore been a violation of Article 6 з 1 of
the Convention.
III. Further alleged violation of Article 6
of the Convention
51. The applicant complained under Article 6 зз 1 and 3 (a) and
(b) of the Convention that the decision of the Presidium of the
Moscow City Court of 16 November 2000, taken in his absence and in
the absence of his counsel since they had not been informed of the
hearing, had prevented him from exercising his defence rights
properly and thus rendered the criminal proceedings unfair. The
Court considers that this complaint falls to be examined under
Article 6 зз 1 and 3 (c), which provide:
"1. In the determination of... any criminal charge against him,
everyone is entitled to a fair... hearing... by [a] tribunal...
3. Everyone charged with a criminal offence has the following
minimum rights:...
(c) to defend himself in person or through legal assistance of
his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of
justice so require...".
A. The parties' submissions
52. The Government disagreed. They submitted that no fresh
charge had been brought against the applicant in the supervisory
review procedure, in which the initial conviction for drug
supplying had merely been reclassified as a less serious drug
offence. They stressed that the applicant had never denied that he
had purchased the drugs for his own consumption.
53. The Government further stated, with reference to Article
377 of the Code of Criminal Procedure as amended by a Decision of
the Constitutional Court of 14 February 2000, that the summoning
of parties to a supervisory review hearing remained at the
discretion of the relevant court provided the review procedure was
not triggered by an application that would be to the applicant's
detriment. The Government noted that the application for
supervisory review, as well as the prosecutor's pleadings at the
hearing, were not to the applicant's detriment. Given that the
supervisory review procedure had benefited the applicant, by
sentencing him to a lesser term of imprisonment as a result of a
new legal classification of his actions, and by releasing him from
serving that sentence, the Government were of the view that the
Presidium of the Moscow City Court's failure to secure the
attendance of the applicant and his counsel did not breach Article
6 of the Convention.
54. The applicant contended that he did not have a fair trial
in the proceedings before the supervisory review court. In his
view, he faced a new charge. He was informed neither of the
application by the Deputy President of the Supreme Court for
supervisory review nor of the hearing before the Presidium of the
Moscow City Court.
55. The applicant further submitted that the supervisory review
court determined issues of both law and fact. In this connection,
he claimed that, depending on the amount of drugs concerned, the
unlawful procurement of drugs was punishable either as a criminal
offence or as an administrative offence subject to a light
penalty. The applicant stated that he had been deprived of an
opportunity to be present and to submit arguments on this
particular issue. In view of the above and having regard to the
fact that the prosecution had participated in the hearing, the
applicant considered that there had been a breach of Article 6 of
the Convention in this respect.
B. The Court's assessment
1. Applicability of Article 6 of the Convention
56. The Court points out that Article 6 of the Convention
applies to proceedings where a person is charged with a criminal
offence until that charge is finally determined (see Adolf v.
Austria, judgment of 26 March 1982, Series A No. 49, p. 15, з 30;
Delcourt v. Belgium, judgment of 17 January 1970, Series A No. 11,
pp. 12 - 15, зз 22 - 26). It further reiterates that Article 6
does not apply to proceedings concerning a failed request to
reopen a case. Only the new proceedings, after the reopening has
been granted, can be regarded as concerning the determination of a
criminal charge (see {Loffler} v. Austria, No. 30546/96, зз 18 -
19, 3 October 2000; {Jose} Maria Ruiz Mateos and Others v. Spain,
No. 24469/94, Commission decision of 2 December 1994, Decisions
and Reports 79, p. 141).
57. The Court observes that the Presidium of the Moscow City
Court examined the application for supervisory review by the
Deputy President of the Supreme Court of Russia, reviewed the case
and amended the first-instance judgment and the appeal decision on
the grounds put forward in that application. It reclassified the
applicant's actions under Article 228 з 1 of the Criminal Code
rather than Article 228 з 4, sentenced him to two years'
imprisonment and, in application of an amnesty law, ordered his
release. It upheld the first-instance judgment and the appeal
decision in the remaining part.
58. On the above facts, the Court is of the view that, in so
far as the Presidium of the Moscow City Court amended the first-
instance judgment and the appeal decision, the proceedings before
it concerned the determination of a criminal charge against the
applicant. It finds, and this was not disputed between the
parties, that Article 6 з 1 of the Convention under its criminal
head applies to those proceedings.
2. Compliance with Article 6 of the Convention
(a) General principles
59. The Court reiterates that it flows from the notion of a
fair trial that a person charged with a criminal offence should,
as a general principle, be entitled to be present and participate
effectively in the first-instance hearing (see Colozza v. Italy,
judgment of 12 February 1985, Series A No. 89, pp. 14 - 15, зз 27
and 29).
60. The personal attendance of the defendant does not
necessarily take on the same significance for an appeal hearing,
even where an appellate court has full jurisdiction to review the
case on questions both of fact and law. Regard must be had in
assessing this question to, inter alia, the special features of
the proceedings involved and the manner in which the defence's
interests are presented and protected before the appellate court,
particularly in the light of the issues to be decided by it and
their importance for the appellant (see Belziuk v. Poland,
judgment of 25 March 1998, Reports 1998-II, p. 570, з 37).
61. It is also of crucial importance for the fairness of the
criminal justice system that the accused be adequately defended,
both at first-instance and on appeal (see Lala v. the Netherlands,
judgment of 22 September 1994, Series A No. 297-A, p. 13, з 33).
62. The principle of equality of arms is only one feature of
the wider concept of a fair trial, which also includes the
fundamental right that criminal proceedings should be adversarial.
The latter means, in a criminal case, that both prosecution and
defence must be given the opportunity to have knowledge of and
comment on the observations filed and the evidence adduced by the
other party (see Brandstetter v. Austria, judgment of 28 August
1991, Series A No. 211, p. 27, зз 66 - 67).
(b) Application of the above principles to the instant case
63. The Court would note at the outset that it does not
consider it necessary to decide whether the absence of the
applicant and his counsel, taken separately, would render the
proceedings before the supervisory review court unfair. Neither of
them was present before the Presidium of the Moscow City Court,
and it is against this background that the Court will determine
the complaint in issue.
64. The Court observes that the Presidium of the Moscow City
Court was not bound by the scope of the application for
supervisory review. It had to exercise a full review of the case
and could dismiss the request, quash the judgment and/or the
appeal decision and remit the case for a new investigation or for
a fresh court examination at any instance, terminate the criminal
proceedings, or amend any of the earlier decisions (see paragraphs
26 - 30 above).
65. The Presidium of the Moscow City Court exercised the above
powers in the applicant's case by amending the conviction and the
sentence, thereby determining a criminal charge against him (see
paragraphs 56 - 58 above).
66. The prosecution was present before the Presidium of the
Moscow City Court. It argued that the applicant's actions should
be reclassified under Article 228 з 1 of the Criminal Code.
67. The Court notes the Government's argument that, given that
the application for supervisory review was not to the applicant's
detriment, the supervisory review court had acted in accordance
with the domestic law, which left the question of whether to
summon the applicant and his counsel to the court's discretion.
However, in view of the powers of the Presidium of the Moscow City
Court as set out above, the Court considers that the latter court
could not, if the trial were to be fair, determine the applicant's
case in the absence of the applicant and his counsel. Had they
been present, they would have had an opportunity to plead the case
and comment on the application by the Deputy President of the
Supreme Court and on the submissions by the prosecutor.
68. In view of the above considerations the Court finds that
the proceedings before the Presidium of the Moscow City Court did
not comply with the requirements of fairness. There has therefore
been a breach of Article 6 з 1 in conjunction with Article 6 з 3
(c) of the Convention.
IV. Alleged violation of Article 8 of the Convention
69. The applicant maintained that the police intervention
infringed Article 8 of the Convention which, in so far as
relevant, provides:
"1. Everyone has the right to respect for his private...
life,...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
70. Having regard to the conclusion reached in paragraphs 49
and 50 above, the Court does not consider it necessary to examine
this complaint separately under Article 8 (see Teixeira de Castro
v. Portugal, cited above, з 43).
V. Alleged violation of Article 13 of the Convention
71. The applicant complained about a violation of Article 13 of
the Convention as a result of the police incitement. Article 13
reads as follows:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
72. In view of its finding under Article 6 з 1 of the
Convention in paragraphs 49 and 50 above, the Court similarly does
not find it necessary to examine the same complaint under Article
13 of the Convention.
VI. Application of Article 41 of the Convention
73. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of
the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party."
74. The applicant claimed compensation for the non-pecuniary
damage sustained by him and for his legal costs and expenses. The
Government contested these claims.
A. Non-pecuniary damage
75. The applicant claimed 4,000 euros (EUR) in respect of non-
pecuniary damage.
76. The Government submitted that the finding of a violation
would constitute sufficient satisfaction.
77. The Court observes that it has found above that the police
incited the applicant to commit the offence for which he was
convicted and that the Presidium of the Moscow City Court amended
his conviction in his absence. The Court considers that the
applicant indisputably sustained non-pecuniary damage, which
cannot be compensated solely by a finding of a violation. Deciding
on an equitable basis, it awards him EUR 3,000 for non-pecuniary
damage, plus any tax that may be chargeable on this amount.
B. Costs and expenses
78. The applicant claimed 133,850 roubles in respect of his
representation by Ms K.A. Moskalenko in the proceedings before
this Court.
79. The Government argued that the applicant's claim had not
been duly substantiated. They pointed out that, according to
documents submitted by the applicant, he had made an agreement for
representation before the Court with Ms K.A. Moskalenko, a lawyer
practising in Moscow, but had actually been represented before the
Court by Ms K.A. Moskalenko and Ms M.R. Voskobitova in their
capacity as lawyers from the International Protection Centre.
80. The Court reiterates that, in order for costs and expenses
to be awarded under Article 41, it must be established that that
they were actually and necessarily incurred in order to prevent or
obtain redress for the matter found to constitute a violation of
the Convention and were reasonable as to quantum (see Nilsen and
Johnsen v. Norway [GC], No. 23118/93, з 43, ECHR 1999-VIII). In
the present case the Court considers that the submitted documents
represent an acceptable form of proof of the applicant's expenses
for his representation in the Strasbourg proceedings by Ms K.A.
Moskalenko. Taking into account that some of the applicant's
complaints were dismissed at the admissibility stage and deciding
on an equitable basis, the Court awards EUR 1,000 under this head,
less EUR 630 paid by the Council of Europe by way of legal aid,
plus any tax that may be chargeable on this amount.
C. Default interest
81. The Court considers it appropriate that the default
interest 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. Dismisses the Government's preliminary objection;
2. Holds that there has been a violation of Article 6 з 1 of
the Convention in relation to the complaint concerning the
conviction as a result of alleged entrapment by the police;
3. Holds that there has been a violation of Article 6 зз 1 and
3 (c) of the Convention in respect of the absence of the applicant
and defence counsel at the hearing in the supervisory review
proceedings;
4. Holds that it is unnecessary to examine the applicant's
complaint under Article 8 of the Convention;
5. Holds that it is unnecessary to examine the applicant's
complaint under Article 13 of the Convention;
6. Holds
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final in
accordance with Article 44 з 2 of the Convention, the following
amounts:
(i) EUR 3,000 (three thousand euros) in respect of non-
pecuniary damage, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(ii) EUR 370 (three hundred and seventy euros) in respect of
costs and expenses, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points;
7. Dismisses the remainder of the applicant's claims for just
satisfaction.
Done in English, and notified in writing on 15 December 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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