issued by the Registrar of the Court

ECHR 119 (2014)

24.04.2014

Russian courts failed to verify complaints of police entrapment

by drug-dealing suspects

In today’s Chamber judgment in the case of Lagutin and Others v. Russia (application nos. 6228/09,

19123/09, 19678/07, 52340/08 and 7451/09), which is not final¹, the European Court of Human

Rights held, unanimously, that there had been:

a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights.

The case concerned allegations by five people convicted of drug dealing that they had been victims

of police entrapment.

The Court held in particular that the Russian trial courts had failed to address the allegations of

entrapment, which had been inseparable from the determination of the applicants’ guilt. The Court

also underlined that, given that there were no adequate safeguards against police provocation under

Russian law, the judicial examination of an entrapment plea was the only means of verifying

whether there had been valid reasons for an undercover operation.

Principal facts

The applicants, Andrey Semenov, Yekaterina Shlyakhova, Ivan Lagutin, Aleksey Zveryan, and Viktor

Lagutin, are Russian nationals who were born between 1979 and 1986 and live in Novocheboksarsk

(the Republic of Chuvashiya), Zelenchukskaya (the Krasnodar Region), Kochubeyevskoye (the

Stavropol Region), Obninsk (the Kaluga Region), and Stavropol (all in Russia), respectively.

Each applicant was the target of undercover police operations, which led to his or her criminal

conviction for drug dealing. Ivan and Viktor Lagutin, brothers, were convicted in October 2008 of

possessing and selling large quantities of cannabis in a judgment eventually upheld in January 2012.

They were eventually sentenced to five years and two months’ and five years’ imprisonment

respectively. Andrey Semenov, a heroin addict, was convicted of the attempted sale of heroin and

sentenced to five years and nine months’ imprisonment in August 2006. Yekaterina Shlyakhova, also

a drug user, was convicted in March 2008 of selling cannabis and sentenced to five years and six

months’ imprisonment, the judgment being upheld on appeal in April 2008. Aleksey Zveryan,

another drug user, was convicted in February 2008 of dealing in ecstasy and sentenced to five years

and six months’ imprisonment, the judgment being upheld in July 2008.

All the applicants alleged during the proceedings against them that they had never procured drugs

prior to the undercover operations in question and would never have become involved in drug

dealing without being lured into it by the police and their informants. In the appeal proceedings, the

courts either dismissed the applicants’ allegations of police entrapment or rejected their appeal

without expressly addressing those allegations. In each case, the police testified that they had

ordered the test purchases because they had received preliminary “operational information”

according to which the applicants had previously been involved in drug dealing.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

Complaints, procedure and composition of the Court

Relying on Article 6 § 1 (right to a fair trial), the applicants alleged that their convictions were unfair

and that their plea of entrapment had not been properly examined in the proceedings before the

national courts.

The applications were lodged with the European Court of Human Rights on 6 January 2007

(application no. 19678/07), 3 June 2008 (52340/08), 10 October 2008 (7451/09), 17 December 2008

(6228/09) and 14 March 2009 (19123/09) respectively.

Judgment was given by a Chamber of seven judges, composed as follows:

Isabelle Berro-Lefèvre (Monaco), President,

Julia Laffranque (Estonia),

Paulo Pinto de Albuquerque (Portugal),

Linos-Alexandre Sicilianos (Greece),

Erik Møse (Norway),

Ksenija Turković (Croatia),

Dmitry Dedov (Russia),

and also Søren Nielsen, Section Registrar.

Decision of the Court

Article 6 § 1

The Court underlined that in its case-law it had accepted the use of undercover agents as a

legitimate investigative technique for combating serious crimes, provided that adequate safeguards

against abuse were in place. In particular, in cases where the main evidence originated from a covert

operation, such as a test purchase of drugs, the authorities had to be able to demonstrate that they

had good reasons for initiating the operation. Moreover, any such investigation had to be conducted

in an essentially passive manner.

The Court observed that in each of the applicants’ cases the police had referred to preliminary

“operational information” according to which the applicants had previously been involved in drug

dealing. However, according to the records submitted to the Court, the Russian trial courts had not

sought to clarify the content of the allegedly incriminating operational files, and the Russian

Government had not provided any further details concerning that “operational information”. The

Court was therefore unable to determine whether the authorities had had good reasons for

mounting the covert operations and whether or not the undercover agents had used pressure to

make the applicants commit the offences in question.

As regards the procedural obligation to provide safeguards against abuse in the course of an

undercover operation, the Court noted that each applicant’s criminal conviction had been based

entirely or predominantly on the evidence obtained in the police-controlled test purchase of drugs.

In previous cases against Russia, the Court had found that test purchases fell entirely within the

competence of the operational search bodies and it had held that this system revealed a structural

failure to provide for safeguards against police provocation.²

In this light, the trial courts – confronted with an arguable allegation that undercover police officers

and informants had not acted in a passive manner – had been under an obligation to establish in

adversarial proceedings the reasons why the operation had been mounted, the extent of the police’s

In particular Veselov and Others v. Russia (23200/10 24009/07 556/10), Chamber judgment of 2 October

2012

involvement in the offence and the nature of any incitement or pressure to which the applicants had

been subjected. Given the lack of adequate safeguards under Russian law against police provocation,

the judicial examination of an entrapment plea was the only means of verifying whether there had

been valid reasons for an undercover operation and whether the police or the informants had

remained essentially passive.

However, the trial courts had made no attempts to check the allegations of the drug police about

the allegedly pre-existing “operational information” and had accepted their unconfirmed statements

that they had good reasons for their suspicions against the applicants. The trial courts’ failure to

address the allegations of entrapment, which in the applicants’ cases had been inseparable from the

determination of their guilt, had compromised the outcome of their trials beyond repair. It had been

at odds with the fundamental guarantees of a fair trial, in particular the principles of adversarial

proceedings and the equality of arms between the prosecution and the defence. There had

accordingly been a violation of Article 6 as regards all five applicants.

Just satisfaction (Article 41)

The court held that Russia was to pay Mr Ivan Lagutin, Mr Viktor Lagutin, Mr Semenov and Ms

Shlyakhova 3,000 euros (EUR) each in respect of non-pecuniary damage. Mr Zveryan did not submit

any claim for just satisfaction.

Separate opinion

Judge Pinto de Albuquerque, joined by Judge Dedov, expressed a concurring opinion, which is

annexed to the judgment.

The judgment is available only in English.

This press release is a document produced by the Registry. It does not bind the Court. Decisions,

judgments and further information about the Court can be found on www.echr.coe.int. To receive

the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter

@ECHRpress.

Press contacts

echrpress@echr.coe.int | tel: +33 3 90 21 42 08

Nina Salomon (tel: + 33 3 90 21 49 79)

Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)

Denis Lambert (tel: + 33 3 90 21 41 09)

Jean Conte (tel: + 33 3 90 21 58 77)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.