EUROPEAN COURT OF HUMAN RIGHTS
Veselov and Others v. Russia – 23200/10, 24009/07 and 556/10
Judgment 2.10.2012 [Section I]
Fairness of criminal proceedings undermined by the lack of a proper regulatory framework for the authorisation of test purchases of drugs: violation
Facts – The three applicants were targeted in undercover operations conducted by the police in the form of test purchases of drugs. They each knowingly procured illegal substances during the course of the test purchases, and the operations led to their criminal conviction for drug dealing. In their application to the European Court, they claimed that their actions were atypical and the result of police incitement, and alleged that the test purchases in their cases had been ordered arbitrarily in the absence of prior information about any criminal activity on their part, and that therefore their convictions were unfair. They further complained that their plea of entrapment had not been properly examined in the domestic proceedings.
Law – Article 6 § 1: The Court reiterated general principles from its extensive case law in this area. In particular, when conducting test purchases, it is incumbent on the domestic authorities to ensure that the manner in which they are conducted excludes the possibility of abuse of power, in particular of entrapment. Therefore a system of accountability is essential, but this was not present here. There was no clear and foreseeable procedure for authorising test purchases and no proper regulatory framework, and the Russian system in this respect had not evolved since being found deficient in previous cases.* This revealed a structural failure in the Russian system that contrasted with the position in most other Contracting States where the conduct of a test purchase and similar covert operations was subject to a number of procedural restrictions, for example a requirement of authorisation by a judge or public prosecutor.
The deficiencies in the Russian framework could be seen in the present case as the police had not considered investigative steps other than the test purchases to verify the suspicion that the applicants were drug dealers. Further, in each case the purchase had been ordered by a simple administrative decision by the body which had later carried out the operation based on an allegedly voluntary contribution of information by a private source. The decision contained very little information as to the reasons for and purposes of the planned test purchase, and the operation was not subjected to judicial review or any other independent supervision.
Also, in respect of two of the applicants, the private sources had previously acted as police informants. In view of the heightened risk of abuse of procedure in such cases, such sources had to remain strictly passive in the proceedings so as not to incite the commission of an offence, but here they had played an active role. Particularly strong justification had therefore been needed for the purchases – they should have been subject to a stringent authorisation procedure and a requirement that they be documented in a way allowing for subsequent independent scrutiny of the actors’ conduct. But in the applicants’ situation not only had the authorities left the deficiencies unremedied, they had also taken advantage of them.
The deficient procedure for authorising the test purchases had thus exposed the applicants to arbitrary action by the police and undermined the fairness of the criminal proceedings against them. Further, the domestic courts had failed to adequately examine the applicants’ plea of entrapment, and in particular to review the reasons for the test purchases and the conduct of the police and their informants vis-à-vis the applicants. In light of this the criminal proceedings against all three applicants were incompatible with the notion of a fair trial.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 each in respect of non-pecuniary damage; claim by third applicant in respect of pecuniary damage dismissed.
- See Vanyan v. Russia, no. 53203/99, 15 December 2005; Khudobin v. Russia, no. 59696/00, 26 October 2006, Information Note no. 90; and Bannikova v. Russia, no. 18757/06, 4 November 2010, Information Note no. 135.