Comparative Criminal Law, Case Law: Bannikova v. Russia (2016/2017), Bachelor 3. 

Comparative Criminal Law: Case Law

Bannikova v. Russia

Introduction

This case is about an application of a Russian national against Russia, concerning Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (par. 1). The case is more precisely about inducing  to commit crimes, by the police.

Facts

The applicant alleged that she had been convicted of an offence incited by the police and complained that certain evidence had not been disclosed at the trial (par. 3). The applicant had some telephone conversations with S. and agreed that he would supply her with cannabis which she would then sell (par. 4). The telephone conversations were recorded by the Federal Security Service (FSB).

The FSB started an undercover operation in the form of a test purchase, and bought 4,408 grams of cannabis from the applicant (par. 8). This was also filmed and recorded by the agent. After the purchase, the applicant was arrested and her house was searched; the FSB found another 28,6 grams of cannabis in her home (par. 8).

The applicant pleaded guilty for having assisted the FSB agent in purchasing the cannabis, but she claimed that she had been induced by that agent to commit the offence, and that she would not have committed it without its intervention (par. 9). The applicant claims that she had the cannabis in her home to help her friend S. out of trouble. She were approached by a certain Vladimir, who started to force her into selling cannabis and making threats should she refuse to do so (par. 10).

Evidence & decision District Court

S. makes a statement that the applicant wanted to sell a large consignment of cannabis, she had customers waiting and wanted to suggest a price. She also stated that she had received threats pressuring her to start selling the cannabis (par. 11).

Other evidence consisted of witness testimonies by certain persons, including the agent, the FSB reports to the test purchase and forensic evidence and reports on the inspection of the seized substance and the telephone conversations (par. 12).

On the basis of this evidence, the Court found the applicant guilty of having sold cannabis to the FSB agent. As regards the alleged incitement, the court considered that S.’s testimonies concerning the treats received by the applicant were an attempt to help her and decided that there was insufficient evidence of any threats or pressure on the applicant to sell drugs (par. 13).

Appeal

The applicant appealed to this decision, relying on the decisive role of the incitement in her committing the crime and on her inability to access the evidence from the investigation. She also complained that the video and audio results were not examined by the Court (par. 14).  The Regional Court rejected the applicant’s argument concerning the incitement by State’s agents on the grounds that the participation in the drug sale had been established on the basis of multiple items of evidence and was not denied by her (par. 15). The examination of the video and audio material was therefore not needed.

The applicant states that the Code of Criminal Procedure has been breached, because the evidence was inadmissible for a conviction (article 75). Because the Court has found the evidence admissible, she claims that there has been a breach of article 6 of the Convention. The applicant claims that she had been convicted of a drug offence which she had committed only because she had been incited to do so by an agent provocateur (par. 23). She also stated that the FSB agent 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 invention (par. 26). The issue of incitement had also not been properly examined in the domestic proceedings (par. 27).

The Government disagreed with the applicant, because the test purchase had been carried out lawfully and it complied with the Operational-Search Activities Act (par. 29). Moreover, the applicant’s intention to sell the cannabis had formed before, and independently of, the FSB agents’ intervention (par. 30). The applicant has not been threatened.

Assessment of the Court

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, form 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 (par. 33).

The Court states that special investigative methods, such as 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 (par. 35).

The Court assessed whether the purchase would have happened without the authorities’ intervention. ‘’Police incitement occurs where the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves  to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution.’’ (par. 37).

The Court examined the reasons underlying the covert operation and the conduct of the authorities carrying it out. The question is whether there were objective suspicions that the applicant had been involved in criminal activity or was predisposed to commit a criminal offence (par. 38).

This must be established according to these criteria:

• Whether the suspect has a criminal record;
• Whether the suspect has been subject before to preliminary investigations;
• Whether the drugs were found at the home of the suspect;
• Whether the suspect carried drugs with him (par. 39, 40).

The authorities must be able to demonstrate at any stage that they had good reasons for mounting the covert operation. If the States’ role is limited, whether the authorities take the initiative which could lead to incitement.

According to par. 69, Article 6 of the Convention will only be complied with if the applicant was effectively able to raise the issue of incitement during his trial, whether by means of an objection of otherwise. It falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable (par. 70).

Decision

The Court decides that the FSB already possessed recordings of the applicant’s conversations with S., which had taken place in 2005 (applicant started the sale in 2004). It follows from that account that

The FSB agent stepped into the transaction when it was already under way. Therefore, the agent merely joined in the criminal acts rather than instigated them (par. 69). The Court also sees no link between Vladimir and the FSB. There is no proof that he pressured the applicant on behalf of the FSB (par. 70).

The applicant has been able to effectively raise the incitement plea at the trial and that the courts had thoroughly examined and determined it (par. 72). The Court also agrees with the Appeal Court that the evidence present in the case was highly relevant to the conclusion as to the applicant’s pre-existing intent to sell drugs (par. 75).

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 (par. 77). There has been no violation of article 6 of the Convention, because the evidence was admissible at trial (par. 78,79).