EHRM, 04-11-2010, nr. 18757/06

The applicant alleged that the sale of cannabis which had led to her conviction had been initiated by FSB agents, who had harassed her into finding and selling them the drug, and that she had never before committed the offence of procurement of drugs and would not have done so but for their intervention.

The applicant also claimed that the issue of incitement had not been properly examined in the domestic proceedings. She pointed out that the only way to find out whether or not she had been a victim of entrapment was to access the operational-search material relating to her encounters with the FSB agents prior to the test purchase. She argued that if her telephone had been tapped during this period there must exist recordings not only of her conversations with S. but also of those with the FSB agents who had called her and talked her into selling cannabis in particularly large quantities. The ‘previous sales of drugs’ that she had admittedly discussed with S. had also involved the same FSB agents as buyers. The courts had not established that she had ever sold, or even contemplated selling, drugs to anyone except the FSB agents. The recordings of her conversations with S. made it clear that at first the applicant had not been aware of prices for drugs and had not been sure whether it was possible to obtain the requested amount of cannabis. Further support for her claim of incitement could have been found in the video and audio recordings of the test purchase, which the courts had refused to examine despite her request.

Moreover, the court had refused to call and examine T., the FSB agent apparently involved in telephone tapping. She also argued that the video and audio recordings of the test purchase could have been of relevance to her defence on the grounds of incitement, and that the courts had failed to justify their refusal to admit them as evidence.

The Government disagreed with the applicant. They contended that the test purchase had been carried out lawfully in that it complied with the Operational-Search Activities Act. As regards the grounds for carrying out the test purchase, the Government referred to sections 1, 2, 7, 8(2) and 10 of the Operational-Search Activities Act and submitted that there had to be pre-existing information indicative of a criminal offence, whether planned or committed, for a test purchase to be ordered. If it was established at any time that the suspected offence was not of a criminal nature, the operational-search activity had to be terminated.

They further stated that the applicant's intention to sell the cannabis had formed before, and independently of, the FSB agents' intervention. The Government further contended that the Kursk FSB had possessed information that the applicant and S. were planning the sale of cannabis. The courts' conclusion that there had been no incitement had been thoroughly argued and well-founded, in particular with reference to the contents of the telephone conversations between the applicant and S. and the testimonies of B. and other witnesses. They also pointed out, as the domestic courts had, that the threats allegedly received by the applicant were unlikely to be related to the drug sale at issue because the witnesses at the trial had testified that the threats had continued after the applicant's arrest.

As regards the video and audio recordings of the test purchase, the Government explained that those materials had not been accepted as evidence in the criminal file because the fact that the applicant had sold the cannabis was undisputed and was supported by ample evidence, including witness testimonies. There had accordingly been no need for additional evidence to prove that the transaction had taken place.

As regards the possibility for the applicant to raise a defence argument relating to the incitement, the Government submitted that she had had a number of avenues available to raise this issue. They contended that the operational-search activity of the FSB agents had been subject to supervision by the prosecutor's office and the courts. In particular, it had been open to the applicant to challenge the lawfulness of the operational-search activity, thereby raising the complaint of incitement, under section 5(3) of the Operational-Search Activities Act by using the procedure provided for by Article 125 of the Code of Criminal Procedure. She had also included the complaint of incitement in her grounds of appeal and it had been examined.

The Court recognises in general that the rise in organised crime calls for appropriate measures to be taken. Nevertheless, it has consistently reiterated that the right to a fair trial, from which the requirement of the proper administration of justice is to be inferred, nevertheless applies to all types of criminal offence, from the most straightforward to the most complex. The right to the fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed for the sake of expedience (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11).

In the specific context of investigative techniques used to combat drug trafficking and corruption, the Court's longstanding view has been that the public interest cannot justify the use of evidence obtained as a result of police incitement, as to do so would expose the accused to the risk of being definitively deprived of a fair trial from the outset (see, among other authorities, Teixeira de Castro v. Portugal, 9 June 1998, §§ 35–36 and 39, Reports of Judgments and Decisions 1998-IV; Khudobin v. Russia, no. 59696/00, § 135, ECHR 2006-XII; Vanyan v. Russia, no. 53203/99, §§ 46 and 47, 15 December 2005; and Ramanauskas, cited above, § 54).

In its extensive case-law on the subject the Court has developed the concept of entrapment breaching Article 6 § 1 of the Convention, as distinguished from the use of legitimate undercover techniques in criminal investigations. It has held that while the use of special investigative methods — in particular, undercover techniques — cannot in itself infringe the right to a fair trial, the risk of police incitement entailed by such techniques means that their use must be kept within clear limits (see Ramanauskas, cited above, § 51).

To distinguish entrapment from permissible conduct the Court has developed the following criteria.

The Court observes that in contesting the fairness of the proceedings the applicant put forward two arguments. Firstly, she alleged that her criminal conviction for drug dealing had been the result of entrapment by the FSB agents who had induced her to sell them cannabis. Secondly, she contended that at the trial she could not effectively plead incitement as her defence because of her inability to access the material from the preliminary investigation. She claimed that she had therefore been deprived of a fair hearing in the determination of criminal charges against her.

As follows from the general principles set out above, the first question to be examined by the Court when confronted with a plea of entrapment is whether the State agents carrying out the undercover activity remained within the limits of ‘essentially passive’ behaviour or went beyond them, acting as agents provocateurs. In addressing this question, the Court will apply the substantive test of incitement set out in paragraphs 37–50 above; its ability to make a substantive finding on this point will depend, however, on whether or not the case file contains sufficient information on the undercover activities preceding the offence, in particular the details of encounters between the State agents and the applicant before the test purchase. If the substantive test is inconclusive owing to the lack of information in the file, the Court will proceed to the second step of its examination, whereby it will assess the procedure by which the plea of incitement was determined by the domestic courts in the light of the criteria set out in paragraphs 51–65 above.

Turning to arguments adduced in the present case as regards the substantive test, the Court observes that the parties disagreed as to whether the FSB had carried out the investigation in the applicant's case in an essentially passive manner. In particular, they differed as to the role of the undercover agent in the applicant's sale of cannabis in connection with the test purchase and the applicant's previous involvement in trading drugs before that agent's intervention.

The Court observes that the applicant began to arrange the sale in question in September 2004, allegedly through a certain Vladimir, who requested her to sell him large quantities of cannabis and harassed her into that deal. Until 28 January 2005 the applicant was preparing the sale, acting as an intermediary between S., the supplier, and Vladimir. According to the applicant's own testimonies in court, her first encounter with the FSB undercover agent B. took place on 29 January 2005, immediately before the test purchase. By that stage the FSB already possessed recordings of her conversations with S., which had taken place between 23 and 27 January 2005, concerning the ongoing drug sale. It follows from that account that the FSB agent B. stepped into the transaction when it was already under way. Therefore, as far as B.'s role is concerned, it is beyond doubt that he merely ‘joined in’ the criminal acts rather than instigated them.

In so far as the applicant could be understood as claiming that Vladimir had also acted on the instructions of the FSB, the Court is unable to see any indication of such a link on the basis of the case file. It observes that the materials in its possession contain no account of the initial phase of the transaction other than that given by the applicant at the trial. It cannot therefore determine with certainty whether Vladimir's alleged involvement was part of the undercover operation, and if so, whether he exerted pressure on the applicant to commit the offence at issue.

In the light of the above, the Court will have to proceed to the second step of its assessment and examine whether the applicant was able to raise the issue of incitement effectively in the domestic proceedings, and also assess the manner in which the domestic court dealt with her plea.

As to whether the applicant had the opportunity to raise a defence argument relating to incitement, the Government contended, inter alia, that the applicant had been able to effectively raise the incitement plea at the trial and that the courts had thoroughly examined and determined it.

The Court reiterates that for such a plea to be effectively addressed the court would have had to establish in adversarial proceedings the reasons why the operation had been mounted, the extent of the police's involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected (see Ramanauskas, cited above, § 71). In the present case the trial court, confronted with the applicant's allegation that her dealings with Vladimir had been a part of the undercover operation — an allegation which was not wholly improbable — was under an obligation to take the necessary steps to uncover the truth, while bearing in mind the burden of proof falling on the prosecution to prove that there had been no incitement (ibid., § 70). It should accordingly have verified, by assessing the information in the case file and, if necessary, reviewing the relevant materials concerning the undercover operation and examining the officials and other individuals involved, whether Vladimir had been primed by the FSB to approach the applicant and ask her to sell drugs.

The applicant complained that the domestic courts' review had been incomplete because of their failure to take cognisance of all possible materials supporting her entrapment plea. She argued, in particular, that it had refused to call and examine T., the FSB agent apparently involved in telephone tapping, to admit the video and audio recordings of the test purchase as evidence and to seek further proof in the form of the recordings of her conversations with the FSB agents which must in theory have existed.

The appeal court explained that no further evidence was necessary because it could already rule out incitement on the basis of the recordings of the applicant's conversation with S. mentioning ‘occasions of previous sales of narcotic drugs, the remaining unsold stock of narcotic drugs, the emergence of new customers and the prospects of carrying out another sale together’. The Court agrees with the appeal court that this evidence was highly relevant to the conclusion as to the applicant's pre-existing intent to sell drugs.

The Court further observes that the FSB agent B. was called and cross-examined at the hearing and that the applicant had the possibility of putting questions to him concerning Vladimir's identity and his alleged role as the FSB informant or as an agent provocateur. No such link — or indeed the existence of any such person — was established as a result. The Court does not consider that questioning T., another FSB agent, would have provided the applicant with additional means of arguing her point. It likewise considers legitimate the court's refusal to allow access to the recordings of the test purchase on the ground that this was superfluous since the fact that the applicant had sold the drugs was not in dispute. Finally, in the absence of any indication to the contrary, the Court accepts that no recordings existed of the applicant's conversations with the FSB agents.

In the light of the foregoing, the Court considers that the applicant's plea of incitement was adequately addressed by the domestic courts, which took the necessary steps to uncover the truth and to eradicate the doubts as to whether the applicant had committed the offence as a result of incitement by an agent provocateur. Their conclusion that there had been no entrapment was thus based on a reasonable assessment of evidence that was relevant and sufficient.

Having regard to the scope of the judicial review of the applicant's plea of incitement, the Court finds that the applicant's trial was compatible with the notion of fairness required by Article 6 of the Convention.

There has accordingly been no violation of Article 6 § 1 of the Convention.