Trapping of an applicant by undercover police officer! In case of an objection of the accused, the burden of proof for the trapping or not is borne by the prosecutor! Violation of a fair trial
JUDGMENT
Zinin v. Russia 09.03.2021 (app. no. 54339/09)
SUMMARY
Trapping a perpetrator into a criminal act after being instigated by the Russian secret police. Right to a fair trial.
The applicant was convicted of copyright infringement and distribution of counterfeit software after being trapped by undercover police officers. He appealed to the courts claiming that he had no intention of committing an offense but was pushed by a secret police officer who, through his coercive behavior, forced him to commit the offenses.
According to the ECtHR, if there is a claim or objection for trapping the accused, the burden of proof lies with the prosecution, as the accusing authority. The national courts did not adequately consider the applicant’s complaint of entrapment.
In addition, the applicant was tried in absentia in the examination of his case in the Supreme Court of Russia, without proving that he or his lawyer had been summoned for a hearing.
The ECtHR ruled that due to deficiencies in the approval process of the secret operation against the applicant, the inability of the prosecution to bear the burden of proving the entrapment, and insufficient judicial review of the applicant’s entrapment allegation, the fair trial (Article 6 § 1 of the Convention), and the right to be heard and defended was also violated after the appeal was heard in the Supreme Court without the plaintiff or his lawyer having been summoned and thus had no opportunity to defend himself before that court. himself after or through his lawyer (article 6 par. 1 and 3c).
The ECtHR awarded an amount of 2,500 euros for non-pecuniary damage.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Stanislav Nikolayevich Zinin, is a Russian national who was born in 1987 and lives in
Ulyanovsk (Russia).
The case concerned the issue of whether the applicant’s right to a fair trial had been breached when
he had been convicted of copyright infringement and distributing counterfeit software as a result of
alleged police entrapment, and when neither the applicant nor his lawyer had been present during
the hearing of the applicant’s case in the cassation court.
In July 2008 the applicant advertised his telephone number in the computer-services section of a newspaper. On 21 July 2008 an undercover police officer, Mr Ig., called the applicant and asked him to install a full eighth version of the computer programme “K”. The applicant searched for counterfeit copy of that programme on the Internet and downloaded it on to a portable hard magnetic disk. He then called Mr Ig. and they agreed to meet several hours later in Mr Ig.’s undercover office in a shopping centre. The applicant attempted to install the unlicensed copy on Mr Ig.’s computer on the same day for 300 roubles ((RUB) about 8 euros (EUR) at that time).
On the same day the applicant was arrested and charged with copyright infringement and large-scale distribution of counterfeit software.
On 18 December 2008 the Court of First Instance heard the applicant ‘s case. The applicant pleaded guilty to copyright infringement and distribution of counterfeit software, but further alleged that the police had motivated and trapped him in the commission of these crimes.
With regard to the conduct of the investigation, the applicant’s lawyer requested the provision of information which led the police to conduct the covert operation. The secret police officer lg. He testified that he had received “information accusing the accused of distributing counterfeit software”. This information was confidential and their entry was prohibited by the Russian government.
The national court rejected the applicant’s complaint of entrapment, and found him guilty, imposing a fine of 8,000 rubles (approximately EUR 206 during the period in question).
The applicant appealed, claiming, inter alia, that he did not intend to commit copyright infringement and that Mr lg. had trapped him in committing this offense.
On 2 February 2009 the Court of Appeal dismissed the applicant’s appeal. The reasoning of the court was the same as that of the court of first instance.
The applicant appealed to the Supreme Court of Russia. On March 11, 2009, the Supreme Court dismissed his appeal. The applicant and his lawyer were not present during the trial. The court records did not contain information as to whether the applicant had been informed of the hearing, as well as of the possibility of the trial being held without the presence of his lawyer.
Relying on Article 6 § 1 (right to a fair trial) of the Convention, the applicant complained that the
police had incited him to commit the crimes of copyright infringement and distribution of
counterfeit software, thus violating his right to a fair trial. Relying on Article 6 §§ 1 and 3 (c) (right to
a fair trial/right to legal assistance) Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal
assistance of own choosing), the applicant further alleged that his trial had not been fair because
neither he nor his lawyer had been informed of the date of the cassation hearing, thus preventing
him from attending.
THE DECISION OF THE COURT…
Article 6 § 1 of the ECHR
The Court emphasized the role of national courts in trapping cases. Any trapping objection submitted by the accused obliges the courts to consider the case in a manner compatible with the right to a fair trial.
According to the ECtHR, the procedure to be followed by the national court must be thorough and decisive on the issue of trapping, with the burden of proof being borne by the prosecution to prove that there was no trapping in the commission of the criminal act. The trial must include the reasons for the covert operation, the extent of the police involvement in the offense and the nature of any incitement or pressure to which the applicant was subjected.
Due to the lack of information about the undercover police operation, the Court concluded that the Government had not complied with the burden of proof that the applicant had not been trapped by the police.
The ECtHR held that there was no indication that the national court had tried at any stage of the proceedings, including the trial, to examine the applicant’s complaint of entrapment. No attempt was made to prove that there was no trapping by the police during the examination of the evidence or witnesses during the hearing of the case, nor was the main witness, Mr Ig., Who was in charge of the covert operation, was questioned about the circumstances in which the operation took place.
In addition, the trial court did not seek to ascertain whether an individual or a police associate had notified the police of the applicant’s criminal activity, or why the police had decided to launch the covert operation, exactly what material the police had in its possession. or if Mr. Ig. had put pressure on the accused during their interaction, factors that were vital in examining the trap allegation.
With regard to judicial review, the ECtHR acknowledged that, in practice, in order for effective judicial proceedings to be instituted, courts in Russia must have access to sufficient evidence to clarify the circumstances leading up to the conduct of the covert operation. The Court has taken into account the difficulty faced by Russian courts in examining the reasons for their entrapment due to the limited evidence provided to them, at the discretion of those conducting covert operations, as in the present case. However, it continued to emphasize that in the fight against crime, the violation of an individual’s fundamental right to a fair trial could not be allowed, especially in view of the successful efforts made by other European countries (see Nosko and Nefedov § 73).
The Court therefore ruled that, due to the shortcomings in the procedure for approving the secret operation against the applicant, the inability of the prosecution to bear the burden of proving the entrapment, and the inadequate judicial review of the applicant’s entrapment allegation, the procedural part of the law was undermined. and, as a result, found a violation of a fair trial (Article 6 § 1 of the Convention).
Article 6 § 1 and 3 (c) of the ECHR
The applicant complained that the trial in his case was not fair because neither he nor his lawyer had been informed of the date of the hearing and therefore did not appear.
The Court acknowledged the Government ‘s argument that the summonses were sent to the applicant and his lawyer before the hearing and took into account the document they submitted.
However, the Court noted that, in accordance with the regulations in force at the time, these summonses should have been sent by registered letter with acknowledgment of receipt. The document submitted by the government is dated and contains only an outgoing mail number. However, there was no postage stamp and the Government did not provide any other evidence that the calls had actually been sent or that the applicant or his lawyer had received them. Consequently, the Court was not persuaded by the evidence adduced by the Government, alleging that the applicant had been summoned to the hearing.
The Court also noted that the main reason for the complaint in the applicant’s case was that he had been trapped in the commission of an offense by the police and that the courts had not considered his objection to trapping. The Court considered that the issues raised by the applicant in his appeal to the Supreme Court appeared to be of some degree of complexity and were of decisive importance to the applicant as potentially acquittal. They should therefore have been assessed directly by the Supreme Court of Russia, because of its broad power, which extends both to the examination of legal matters and to substance.
In addition, the prosecutor submitted oral observations before the court while the applicant did not have the opportunity to present his evidence or respond to the prosecutor’s observations, a situation which always puts one party in an advantageous position over the other before the court and was therefore violated. the principles of litigation and equality of arms, which are inherent in the concept of a fair trial.
The ECtHR therefore ruled, based on all the above, that the proceedings before the national courts did not comply with the requirements of a fair trial and also found a violation of Article 6 §§ 1 and 3 (c) of the Convention.
Just satisfaction: EUR 2,500 for non-pecuniary damage
