CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 avril 2014

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RUSSIA   (Applications nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09)               JUDGMENT     STRASBOURG   24 April 2014       FINAL   24/07/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Lagutin and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Julia Laffranque,   Paulo Pinto de Albuquerque,   Linos-Alexandre Sicilianos,   Erik Møse,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 1 April 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in five applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals (“the applicants”). The dates of lodging the applications, the application numbers, the applicants’ names, their personal details and the names of their legal representatives are set out in Annex I. 2.     The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicants each alleged that they had been convicted of drug offences following entrapment by the police in violation of Article 6 of the Convention. 4.     On 25 November 2010 the applications were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing. 6.     The facts of each individual criminal case, as submitted by the parties, are summarised below. The applicants disagreed with the Government on the underlying causes and the circumstances leading to the test purchases, and where this is so both versions are given. As regards the factual details of the covert operations, it is common ground that the applicants knowingly procured drugs in the course of the test purchases. A.     The applications of Mr Ivan Lagutin and Mr Viktor Lagutin (nos.   6228/09 and 19123/09) 7 .     The applicants are brothers. At the time of arrest they were vendors working in a video- and audio-rental kiosk. At the time of lodging their applications they were serving prison sentences in correctional colonies following their criminal conviction in respect of which they lodged these applications. 8.     On an unspecified date the Federal Service for Drug Control ( ФСKН , the drugs police) received information from an undisclosed source that the applicants were involved in drug dealing. On that basis the police decided that an undercover policeman, X, would infiltrate the group and carry out test purchases of cannabis from the applicants. 9.     It is undisputed by the parties that X approached Ivan Lagutin through an acquaintance and asked him whether he could supply him with cannabis. The parties differ as to whether Ivan Lagutin agreed to do so. According to the Government, which relied on X’s testimony, Ivan Lagutin had readily agreed to supply him with cannabis. According to the applicants, he had replied that he did not have any but could ask his dealer who occasionally passed by his kiosk. 10.     The applicants contended that after that conversation X had called Ivan Lagutin repeatedly to ask if he had cannabis. Ivan Lagutin thought that X was a drug user, and being a cannabis smoker himself he decided to help him. When the dealer eventually came to the kiosk Ivan Lagutin asked him to supply cannabis for X as well, and when the dealer agreed the applicant called X back to tell him. He bought the cannabis for X with money borrowed from the kiosk cash till which he refunded after X had paid him back. On that occasion it was Viktor Lagutin who had passed the parcel to X at his brother’s request. After that, X had continued to call Ivan Lagutin regularly. In total Ivan Lagutin had bought cannabis for X on three occasions, all of which had been test purchases. 11.     The official records of the three test purchases contain the following account. On 16 October 2007 undercover policeman X was assigned to carry out the first test purchase of cannabis from the applicants. He was given 350 Russian roubles (RUB) in banknotes that had been photocopied. He met the applicants at the kiosk, they went inside and he purchased 7.5   grams of cannabis. Ivan Lagutin took the money and Viktor Lagutin handed him a paper bag with the drug inside. He asked the applicants if he could come back for more in future, and they confirmed that he could. Afterwards, he handed the cannabis to the police. The second test purchase took place on 1   November 2007, allegedly following a phone call from Ivan Lagutin telling X that he had obtained the cannabis. After being given RUB   500 that had been photocopied X called Ivan Lagutin to arrange a meeting, picked him up in town and drove to the kiosk where he purchased 7.8 grams of cannabis wrapped in paper. Afterwards, he handed the packet of cannabis to the police. The third test purchase took place on 23   November 2007, this time for RUB 1,000. X pre-arranged it by telephone, then left the money at the kiosk with another vendor and came back later to get the drugs from Ivan Lagutin, who gave him 10 grams of cannabis which X then handed over to the police. 12.     The telephone communications between X and the applicants were not recorded or intercepted. 13.     On 14 December 2007 the police searched the kiosk and seized 7.6   grams of cannabis wrapped in newspaper and a cut-off plastic bottle with paper foil inside, which was allegedly a device for smoking cannabis. The applicants were arrested and charged with procuring large quantities of narcotic drugs, acting in conspiracy, and illegally possessing drugs. 14.     The case was examined at first instance by the Promyshlennyy District Court of Stavropol. The applicants pleaded guilty in part, but claimed that they had committed the crime as a result of police entrapment. They pointed out that there had been no evidence of their prior involvement in drug dealing. They maintained that Ivan Lagutin had only exceptionally agreed to assist X in acquiring the drugs because he believed that he was a cannabis smoker like himself. As regards Viktor Lagutin, he had not been directly involved in the transactions with X, although he knew that his brother had occasionally smoked cannabis. 15.     The court cross-examined X, whose identity had been disclosed, and the witnesses, who gave a detailed account of the test purchases. The court also examined the video recordings of the first two test purchases. 16.     X testified that he had infiltrated the group in order to verify operational information received by the drugs police concerning the supplying of cannabis. He had approached the applicant at a party asking if it was possible to obtain any, and the applicant had agreed to help. Defence counsel asked whether X had been aware that the law prohibited incitement to commit criminal offences, but the judge rejected the question as irrelevant. 17.     The court also cross-examined S, an operations officer who had been in charge of the undercover operation. He testified that the police had received information from an undisclosed source that the applicants were selling drugs. He testified that the information had not come from X, but refused to provide any details on the grounds that it was classified information. He testified that X had been instructed to infiltrate the group but had not been obliged to disclose his methods of undercover work and had not reported back to his superior about the manner of his communications with the applicants prior to, and between, the test purchases. In particular, he did not know and was not interested in how X had come to an agreement with the applicants about supplying the drugs. He did not know whether the transaction had been initiated by X or one of the applicants. 18.     On 1 October 2008 the Promyshlennyy District Court of Stavropol convicted the applicants as charged and sentenced Ivan Lagutin to six years’ and Viktor Lagutin to five years’ imprisonment. The applicants appealed, pleading, in particular, police entrapment and alleging that the results of the test purchases had to be excluded from the body of evidence as unlawfully obtained. They contested the allegation that the police had had information indicating that they had previously sold drugs. 19.     On 26 November 2008 the Stavropol Regional Court dismissed the appeal, without expressly addressing the allegation of entrapment, and upheld the first-instance judgment. 20.     On 28 January 2011 the Deputy Prosecutor of the Stavropol Region lodged a request for supervisory review of the case on the grounds that the operational-search activity against the applicants had ceased to be lawful after the first test purchase, which had yielded sufficient proof of their criminal activity. The Deputy Prosecutor considered that the police should have instituted criminal proceedings immediately after the episode of 16   October 2007 and that therefore the second and third episodes constituted entrapment contrary to the Operational-Search Activities Act. Those episodes should therefore be excluded from the grounds of their conviction. 21.     On 16 February 2011 a judge of the Stavropol Regional Court dismissed the prosecutor’s request and refused to reopen the criminal proceedings in the applicants’ case, having dismissed the arguments concerning entrapment. 22.     On an unidentified date the Deputy Prosecutor General of the Russian Federation lodged a request for supervisory review of the case on essentially the same grounds. 23 .     On 26 January 2012 the Presidium of the Stavropol Regional Court granted the request. It found that the first test purchase had been carried out on the basis of operational information that two persons, Ivan and Viktor Lagutin, had been selling cannabis. During the test purchase that information had been confirmed and at the same time the criminal offence had been committed, which was sufficient to bring charges. There had been no need for any further test purchases as these had not been aimed at investigating the chain of supply of drugs. The second and third episodes were therefore to be considered as intentional incitement to commit the drug offences. The evidence relating to those two episodes was declared inadmissible and excluded from the grounds of the applicants’ conviction. Ivan Lagutin’s sentence was commuted to five years and two months’ imprisonment, and Viktor Lagutin’s sentence remained unchanged. B.     The application of Mr Semenov (no. 19678/07) 24 .     The applicant is a drug user. He claims to have become a heroin addict in prison where he was serving his first sentence. At the time of his arrest he was unemployed. At the time of lodging his application he was serving his third prison sentence in a correctional colony following his criminal conviction in respect of which he lodged this application. 25.     According to the official version, the drugs police received operational information that the applicant was selling drugs. The Government claimed that the drugs police had been keeping a file on the applicant’s involvement in drug dealing for a year and a half prior to the test purchase. On 18 November 2005 the interception of his mobile phone was authorised by a court. On the basis of that preliminary information, on 25   November 2005 the police decided to carry out a test purchase of heroin from the applicant. It was carried out by a police informant, “Ivanov”, whose identity remained undisclosed in the ensuing proceedings. During the test purchase the applicant sold four packets of heroin and a syringe with heroin to “Ivanov”, who paid him RUB 5,000. 26.     According to the applicant, he knew “Ivanov” as a fellow drug addict. On 25 November 2005 “Ivanov” called him to tell that he had RUB   1,000 and was looking to buy heroin with that amount. The applicant told him that his dealer was selling only 5-gram doses for RUB 5,000, that he had only RUB 700 and was suffering from withdrawal symptoms, and suggested sharing a dose between them. “Ivanov” called him back later and told him that he had found RUB 5,000, and they agreed to share the purchase. “Ivanov” brought the money to the applicant’s flat and the applicant asked him to wait outside to avoid crossing with the dealer. When the dealer brought the drug the applicant paid him with “Ivanov’s” cash. He then reimbursed “Ivanov” RUB 700 and they consumed part of the heroin together. “Ivanov” took the remaining heroin away with him. 27.     After the test purchase a search was carried out at the applicant’s flat. No money was found, but the police seized an empty sachet with traces of heroin, a piece of cotton wool soaked in heroin and an empty syringe, also with traces of heroin. The applicant was charged with drug trafficking. 28.     The Moskovskiy District Court of Cheboksary examined the case at first instance. The applicant denied having been involved in drug dealing. He pleaded guilty to having acquired heroin on behalf of “Ivanov” but explained that he had only done so because of the arrangement to consume it together, as he was suffering from withdrawal symptoms. He alleged that he had committed the offence as a result of entrapment. 29.     “Ivanov” was called as a witness and examined during the trial, although his identity was kept secret. He testified that he had called the applicant asking him to supply him with heroin and that he had purchased four sachets of the drug at the applicant’s flat. When cross-examined, “Ivanov” refused to answer the following questions: whether he knew the applicant; whether he knew the applicant’s heroin dealer; whether he knew that the dealer was coming after he had left the money with the applicant; whether it was his initiative to conduct a test purchase from the applicant; whether he had previously bought drugs from the applicant; and whether he had previously been arrested by the drugs police. 30.     On 5 May 2006 the first-instance court found the applicant guilty of selling drugs and sentenced him to six years’ imprisonment, having found him to be a serial offender. In its judgment the court relied, among other evidence, on the transcripts of the applicant’s intercepted telephone calls which had taken place between him and “Ivanov” during the transaction on 25 November 2005. It noted that the audio recording had confirmed receipt of the money and that the applicant had given drugs to the informant. 31.     The applicant appealed on the grounds, inter alia , that he had been convicted of an offence committed as a result of police entrapment. 32.     On 6 July 2006 the Supreme Court of the Republic of Chuvashiya dismissed the applicant’s appeal, upholding, in substance, the first-instance judgment. At the same time it reclassified the offence as attempted sale, having reduced the sentence to five years and eleven months’ imprisonment. 33 .     On 18 August 2006 the Presidium of the Supreme Court of the Republic of Chuvashiya examined a request by the applicant for supervisory review and decided that the applicant was not a serial offender. It reduced the applicant’s sentence to five years and nine months’ imprisonment and upheld the remainder of the earlier judicial decisions. C.     The application of Ms Shlyakhova (no. 52340/08) 34 .     The applicant is a drug user. At the time of her arrest she was unemployed. At the time of lodging her application she was serving a prison sentence in a correctional colony following her criminal conviction in respect of which she lodged this application. 35.     On the night of 6 to 7 October 2007 the drugs police conducted two test purchases whereby the applicant first procured 5 grams of cannabis for police informant “Smirnov” and about one and a half hours later procured 5.8 grams of cannabis for an undercover police officer, “Zhirkov”. The parties differ as to the reasons for ordering the test purchases and as to the circumstances in which the applicant had agreed to procure the drugs. According to the Government, the drugs police had been in possession of operational information from an undisclosed but reliable source that the applicant was trafficking in cannabis. According to the applicant, the police had had no preliminary information about her alleged criminal activity and had ordered the test purchase without a valid reason. She claimed that she had procured drugs for the undercover agents as a result of entrapment. 36.     On the basis of the test purchases the applicant was charged with selling drugs. 37.     The Sovetskiy District Court of Krasnodar examined the case at first instance. At the trial the policemen and the witnesses testified regarding the test purchases. They all pointed out that during the test purchase the applicant had been in a state of narcotic intoxication. A forensic report also confirmed that at the time of arrest the applicant had been under the influence of opiates. 38.     The court asked the prosecutor if the investigating authorities had had any classified information incriminating the applicant. The prosecutor replied that all confidential material relating to the conduct of the test purchase had been disclosed. However, when the court subsequently examined the police officers they testified that, prior to the test purchase, the police had received operational information that the applicant was selling cannabis at RUB 350 per box, but they could not name the source or expand on that information at the hearing because the information remained confidential. 39.     “Smirnov” and “Zhirkov” were called as witnesses and were examined during the trial, although their identity was kept secret. 40.     “Zhirkov” testified that he had met the applicant in September 2007 and that she had immediately offered to purchase cannabis for him. He had called her back in October 2007 and asked her to supply him with cannabis. She had sold him two sachets for RUB 800 during the test purchase, and he had paid her with banknotes marked with a UV marker pen. He denied having been acquainted with “Smirnov” and also denied the involvement of any intermediary between himself and the applicant. 41.     “Smirnov” testified that he was an occasional cannabis smoker and that he had collaborated with the drugs police. He had met the applicant in autumn 2007 and she had asked him if he was taking drugs. He stated that the applicant had offered to buy him drugs but could not remember in what circumstances. He had then reported on her to the drugs police, who had decided to carry out a test purchase in which he would act as a buyer. The transaction had taken place inside the entrance to a block of flats, and the applicant had handed him two sachets of cannabis. When cross-examined, he denied having consumed drugs with the applicant during the test purchase. 42.     The applicant alleged that she was a cannabis smoker but had never been involved in drug dealing. She pleaded guilty to having acquired cannabis on behalf of “Smirnov” but explained that she had only done so exceptionally and as result of entrapment. She testified that she had met “Smirnov” when she was renting a room in his flat. She knew that he was a drug user and they had once smoked cannabis together. On one occasion he had told her that he wanted to overcome his addiction to strong drugs and needed some “weed” to ease the withdrawal pains. The applicant could see that he was suffering and out of compassion had agreed to buy cannabis for him from her dealer. On 6 October 2007 she had met “Smirnov” to take the money before going to the dealer, and he had then introduced her to “Zhirkov”, who had also asked for cannabis and complained of withdrawal symptoms. The applicant replied that she could find cannabis for “Smirnov”, but not for “Zhirkov”. Later on the same day she had met “Smirnov” to give him the cannabis that she had purchased for him. They had entered a block of flats so that she could pass it over to him and then “Smirnov” had produced a syringe of heroin and offered it to the applicant. She had accepted, although she was not a heroin user, and “Smirnov” had injected her with it. He had then told her to wait for “Zhirkov” and to pass part of the cannabis to him. Feeling disorientated from the effects of the drug, she had done as she was told and when “Zhirkov” came she had passed him the cannabis and then been arrested. 43.     On 5 March 2008 the first-instance court found the applicant guilty of selling drugs and sentenced her to five years and six months’ imprisonment. The applicant appealed, inter alia , on the grounds that she had committed the offence as a result of police entrapment. 44 .     On 9 April 2008 the Krasnodar Regional Court dismissed the applicant’s appeal, having found, in particular, that there had been sufficient evidence that the applicant had procured drugs on the night of 6   to   7   October 2007. It noted that the police officers had testified that they had received preliminary information that the applicant had been selling drugs. It also found that the police had acted in accordance with the law and therefore rejected the defence of entrapment. It upheld the first-instance judgment. D.     The application of Mr Zveryan (no. 7451/09) 45 .     The applicant is a drug user. At the time of his arrest he was working for his father’s company. At the time of lodging his application he was serving a prison sentence in a correctional colony following his criminal conviction in respect of which he lodged this application. 46.     On an unspecified date the Kaluga regional office of the drugs police received information from an undisclosed source that the applicant was involved in drug dealing. On that basis the police carried out a test purchase of MDMA pills, commonly known as “ecstasy”, from the applicant. The test purchase was carried out by an undercover police officer acting under the pseudonym of “Azamatov”. 47.     According to the Government, “Azamatov” had infiltrated a group of people close to the applicant, all of whom were dealing in and/or using drugs, pretending that he was a drug user himself. The first time he met the applicant and his acquaintance, Ms S., they had told him that they were MDMA users and that they could help if he wanted to buy some, the price of one MDMA pill being RUB 600. They gave him their cell phone numbers. 48.     According to the applicant, he was approached by an acquaintance, “Timagin”, with a request to buy some “ecstasy” for him. He knew that Ms   S had a contact, a drug dealer, and he asked her to help him purchase four MDMA pills for his friend. “Timagin” picked him up in a car, with another person, “Azamatov”, who was supposedly in need of the drug. They then met Ms S. and she took them to a night club where she met the dealer and purchased four pills for “Azamatov” with the latter’s money (RUB   2,400). 49.     The official records of the three test purchases contain the following account. On 2 April 2007 the police officer “Azamatov” was assigned to carry out the first test purchase of the MDMA pills from the applicant. “Azamatov” was given RUB 2,400. The banknote numbers had been noted, but they were not otherwise marked or photocopied. He met the applicant and Ms S. at around midnight the same day, handed the applicant RUB   2,400 and they drove together to a night club where Ms S. left them for a few minutes and returned with a packet containing four pills. “Azamatov” came back to the police station and handed in the pills. It was later established by an expert that only one of the four pills contained an active MDMA ingredient, while the other three did not contain any narcotic substances. 50.     The telephone communications between “Azamatov”, the applicant and Ms S. prior to the test purchase were not recorded or intercepted, but an audio recording was made in the course of the transaction, starting at 11.30   p.m. on 2 April 2007. 51.     On 12 April 2007 the President of the Kaluga Regional Court authorised the tapping of the applicant’s and Ms S.’s telephones for up to three months. Several recordings were made, the transcripts of which were appended to the case file, but they were not used as evidence during the trial. Transcripts made available to the Court included four conversations during which the applicant spoke about drugs, in jargon. It transpires from those conversations that he and his correspondents lived in constant search of drugs, shared information about their sources and purchased them together from whatever dealer they could find. 52.     On 6 June 2007 “Azamatov” called the applicant and asked him to purchase drugs for him. The applicant said that he could not help him, but they agreed to meet. When they met the applicant was arrested and charged with procuring large quantities of narcotic drugs on 2 April 2007 in conspiracy with Ms S. 53.     The case was examined at first instance by the Borovskiy District Court of Kaluga Region. The applicant and Ms S. pleaded guilty in part but claimed that the crime they had committed was the result of police entrapment. The applicant pointed out, in particular, that there was no evidence of his prior involvement in drug dealing. He maintained that he had only agreed to assist “Timagin” in acquiring drugs because he had believed that he was an occasional “ecstasy” user, like himself. He had not intended to purchase it for “Azamatov”, but had ended up doing so because of “Timagin’s” manipulation. 54.     The court cross-examined “Azamatov” under a procedure whereby his identity was concealed from the participants in the proceedings, except the judge. He testified that his infiltration and the covert operation had been ordered because of the information about the applicant and Ms S. received by the police, but he refused to name the source of that information. He stated that the applicant and Ms S. had told him that they could sell him MDMA pills, but he had never bought any from them prior to the test purchase and had never seen either of them selling drugs to anyone. The court also cross-examined another police officer who had taken part in the test purchase and the witnesses in the investigation who had given details of the test purchase. The court also examined extracts of the recordings made during the test purchases, which were about five minutes long. 55.     Ms S. testified at the trial that the applicant had called her at about 10   p.m. on 2 April 2007 and asked her to find some drugs for his friend, who was “unwell”. She had refused to begin with, but in the end he had persuaded her to help. She had called her dealer and found out that he had MDMA pills available. She had called the applicant back and confirmed that they could go and get the pills, and they had driven together to the night club to meet up with the dealer. There had been four people in the car: the applicant, herself, “Azamatov” and “Timagin”. Before she left the car the applicant had given her RUB 2,400 and she had purchased the packet of four pills with that money. She had then returned to the car and handed the packet to “Azamatov”. 56.     The applicant’s defence counsel referred in oral pleadings to the guidelines adopted on 15 June 2006 by the Plenary Supreme Court of the Russian Federation on jurisprudence in criminal cases involving narcotic drugs or psychotropic, strong or toxic substances. He claimed, in particular, that it had not been established that the applicant had intended to engage in drug trafficking prior to being contacted by the undercover agent, or that he had carried out any preparatory steps to the commission of the offence. 57.     On 7 February 2008 the Borovskiy District Court of Kaluga Region convicted the applicant as charged and sentenced him to five years and six months’ imprisonment. 58.     The applicant appealed. He reiterated his plea of entrapment and claimed, inter alia , that the police had no information suggesting that he had previously sold drugs. He also complained that the authorities had not made any attempts to find and question “Timagin”, who had played a key role in the test purchase and could have cast light on the role of the police in the offence he had committed. He claimed that the first-instance court had failed to follow the guidelines adopted by the Plenary Supreme Court of the Russian Federation on 15 June 2006. 59 .     On 1 July 2008 the Kaluga Regional Court upheld the first-instance judgment. It did not address the plea of entrapment, having limited itself to the finding that the applicant’s conviction had been lawful and well   founded. It also noted that the undercover operation had been based on preliminary information indicating that the applicant was involved in drug dealing. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Criminal liability for drug trafficking 60.     Article 228.1 of the Criminal Code (as in force at the material time) provided that the unlawful sale of narcotic drugs or psychotropic substances carried a sentence of four to eight years’ imprisonment; the same offence involving a large quantity of drugs or committed by a group of persons acting in conspiracy carried a sentence of up to twelve years’ imprisonment; and the same offence involving a particularly large quantity of drugs carried a sentence of up to twenty years’ imprisonment (Article 228.1 § 3 (d)). 61.     On 15 June 2006 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling no. 14) on jurisprudence in criminal cases involving narcotic drugs or psychotropic, strong or toxic substances. The Plenary ruled, in particular, that charges of attempted sale should be brought against anyone selling such substances where this was carried out in connection with a test purchase under the Operational-Search Activities Act, (Article 30 § 3 in conjunction with Article 228.1 of the Criminal Code). It also set out the following conditions on which the results of the test purchase could be admitted as evidence in criminal proceedings: (i) they must have been obtained in accordance with the law; (ii) they must demonstrate that the defendant’s intention to engage in trafficking of illegal substances had developed independently of the undercover agent’s acts; and (iii) they must demonstrate that the defendant had carried out all the preparatory steps necessary for the commission of the offence. B.     Investigative techniques 62.     The Operational-Search Activities Act of 12 August 1995 (no.   144 ‑ FZ) provided as follows at the material time: Section 1: Operational-search activities “An operational-search activity is a form of overt or covert activity carried out by operational divisions of State agencies authorised by this Act (hereinafter ‘agencies conducting operational-search activities’) within the scope of their powers, with a view to protecting the life, health, rights and freedoms of individuals and citizens, or property, and protecting the public and the State against criminal offences.” Section 2: Aims of operational-search activities “The aims of operational-search activities are –     to detect, prevent, intercept and investigate criminal offences and search for and identify those responsible for planning or committing them; ...” Section 5: Protection of human rights and citizens’ freedoms during operational ­ search activities “... A person who considers that an agency conducting operational-search activities has acted in breach of his or her rights and freedoms may challenge the acts of that agency before a higher-ranking agency conducting operational-search activities, a prosecutor’s office or a court. ...” Section 6: Operational-search measures “In carrying out investigations the following measures may be taken: ... 4. test purchase; ... 9. monitoring of postal, telegraphic and other communications; 10. telephone interception; 11. collection of data from technical channels of communication; 12. operational infiltration; 13. controlled supply; 14. operational experiments. ... Operational-search activities involving the monitoring of postal, telegraphic and other communications, telephone interception through [telecommunications companies], or the collection of data from technical channels of communication shall be carried out by technical means by the Federal Security Service, the agencies of the Interior Ministry and the regulatory agencies for drugs and psychotropic substances in accordance with decisions and agreements signed between the agencies involved. ...” Section 7: Grounds for the performance of operational-search activities “[Operational-search activities may be performed in the following circumstances] ... 1.     pending criminal proceedings; 2.     where information is obtained by the agencies conducting operational-search activities which: (1)     indicates that an offence is being planned or has already been committed, or points to persons who are planning or committing or have committed an offence, if there is insufficient evidence for a decision to institute criminal proceedings; ...” Section 8: Conditions governing the performance of operational-search activities “Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning: 1.     indications that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory; 2.     persons who are conspiring to commit, or are committing or have committed an offence whose investigation is mandatory; ... Test purchases..., operational experiments, or infiltration by agents from the agencies conducting operational-search activities or individuals assisting them, shall be carried out pursuant to an order issued by the head of the agency conducting operational-search activities. Operational experiments may be conducted only for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons who are planning or committing or have committed a serious crime. ...” Section 9: Grounds and procedure for judicial authorisation of operational-search activities involving interference with the constitutional rights of individuals “The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused. ... The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons. ...” Section 10: Information and documentation in support of operational-search activities “To pursue their aims as defined by this Act, agencies conducting operational-search activities may create and use databases and open operational registration files. Operational registration files may be opened on the grounds set out in points 1 to 6 of section 7(1) of this Act ...” Section 11: Use of information obtained through operational-search activities “Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...” 63.     On 24 July 2007 section 5 of the Act was amended to prohibit agencies conducting operational-search activities from directly or indirectly inducing or inciting the commission of offences. 64.     Article 125 of the Code of Criminal Procedure of the Russian Federation, in force from 1 July 2002, provided at the material time that orders of a preliminary interview officer, investigator or prosecutor that were capable of encroaching on the constitutional rights and freedoms of participants in criminal proceedings or obstructing their access to justice could be challenged before a court whose jurisdiction covered the place of the investigation. Subsequent changes in the Code added the head of the investigating authority to the list of officials whose acts could be challenged.” 65 .     On 10 February 2009 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling no. 1) on the practice of judicial examination of complaints under Article 125 of the Code of Criminal Procedure of the Russian Federation. The Plenary ruled, inter alia , that the decisions of officials of agencies conducting operational-search activities must also be subject to judicial review under the provisions of Article 125 if the officials were acting pursuant to an order by an investigator or the head of the investigating or preliminary-inquiry authority. C.     Evidence in criminal proceedings 66.     The Code of Criminal Procedure provides, in so far as relevant: Article 75: Inadmissible evidence “1.     Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings]. ...” Article 235: Request to exclude evidence “... 5.     If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial. ” D.     Reopening of criminal proceedings 67.     Article 413 of the Code of Criminal Proceedure contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances. A judgment of the European Court of Human Rights finding a violation of the European Convention on Human Rights in a case in respect of which an applicant lodged a complaint with the Court is considered to be a new circumstance warranting a reopening (Article   413 § 3 (2)). III.     RELEVANT INTERNATIONAL INSTRUMENTS AND COMPARATIVE LAW 68.     The Council of Europe’s instruments on the use of special investigative techniques are outlined in Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR 2008-...). 69.     A comparative analysis of the national systems of authorisation of undercover operations in the Council of Europe member States is summarised in Veselov and Others v. Russia (nos. 23200/10, 24009/07 and 556/10, §§ 50-63, 2 October 2012). THE LAW I.     JOINDER OF THE APPLICATIONS 70.     In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background. It considers that joining these applications will highlight the recurring nature of the issues raised in the five cases at hand and underscore the general nature of the Court’s findings below. II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 71.     The applicants complained that they had been unfairly convicted of drug offences that they had been incited by the police to commit and that their plea of entrapment had not been properly examined in the domestic proceedings, in violation of Article 6 of the Convention. These complaints fall to be examined under Article 6 §   1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A.     Admissibility 72.     The Government claimed that none of the applicants, except for Mr   Semenov, had exhausted domestic remedies in respect of their complaints of entrapment by an agent provocateur . In particular, Mr Ivan Lagutin and Mr   Viktor Lagutin had not complained of the alleged entrapment before the prosecutor’s office and Mr Zveryan had not made an entrapment plea before the domestic court. In respect of Ms Shlyakhova they alleged, in general terms, that she had failed to exhaust domestic remedies but did not specify which ones. 73.     The applicants disagreed, pointing out that they had made a plea of entrapment in the first ‑ instance hearing and before the appeal court. Mr   Ivan Lagutin and Mr Viktor Lagutin referred to extracts from the court records and copies of their grounds of appeal, which contained the relevant arguments. 74.     Having examined the case files of all the applicants, the Court finds that in each case the court records and the grounds of appeal contain sufficiently clear and specific allegations that the offences at issue were the result of police entrapment. Moreover, it is clear from these documents as well as from the respective judgments that these complaints were understood by the domestic courts as such, but were dismissed. Consequently, the Court concludes that the applicants’ complaints were brought to the attention of the domestic courts competent to deal with them. 75.     In so far as the Government may be understood to be suggesting that, before or in addition to having raised the issue of incitement in court, the applicants were required to lodge the same complaints with the prosecutor’s office, the Court considers that this was not necessary in order to comply with the rule of exhaustion of domestic remedies. It reiterates that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no.   25642/94, § 39, ECHR 1999-III). W hen a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Micallef v. Malta [GC], no. 17056/06, §   58, 15 October 2009). Moreover, when the domestic courts examined the applicants’ pleas of entrapment they did not suggest that the applicants had somehow undermined their entrapment arguments by not having previously raised them before the prosecutor’s office. The Court therefore considers that the applicants have complied with the exhaustion requirement and that it has not been shown that a complaint to the prosecutor would have offered better prospects of success (see Veselov and Others , cited above, § 73). 76.     Accordingly, it dismisses the Government’s objection as to non ‑ exhaustion of domestic remedies 77.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The Government 78.     The Government maintained that the test purchases conducted in all these cases were lawful and involved no entrapment by the police. They contended that in each case the police had had grounds to suspect the applicants of involvement in drug trafficking 79.     They maintained in each case that the police had ordered the test purchases on the basis of incriminating information from undisclosed confidential sources. That classified information could be disclosed to the trial court by a decision of the head of the body carrying out the operational ‑ search activity. Howev