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Russia is overturning drug convictions after European Court rulings, but its justice system is reluctant to back away from controlled purchases

Source: Meduza

The European Court of Human Rights has criticized Russia’s practice of making controlled purchases of illegal drugs and demanded an explanation from the government

In 2016, the European Court of Human Rights (ECHR) agreed to hear complaints brought by nine Russian citizens convicted of drug-related offenses. Irina Khrunova, a lawyer with the “Agora” international human rights group who specializes in drug crimes, is defending four of the Russians who turned to the ECHR. She told Meduza that the main evidence in the cases against all nine of these individuals were so-called “controlled purchases” of narcotics, were police officers recruit known drug dealers and other intermediaries to buy illegal drugs from suspected dealers, in order to confirm their suspicions. The method is one of the most common ways police catch drug dealers.

Theoretically, controlled purchases are supposed to corroborate incriminating information the police have already collected about suspected dealers, but in practice these sting operations are often the primary and sometimes only evidence against individuals in Russia. “The standard of proof in these cases is extremely low,” explains Irina Khrunova. “Typically, they seize money from the alleged seller and whatever drugs from the buyer. Plus there’s testimony from the officer who staged the operation, and that right there is enough for a conviction.”

All nine people who appealed to the ECHR pleaded not guilty in Russian court, before being sentenced to years in prison. For example, 32-year-old Muscovite Viktor Panin was arrested in November 2013 in a controlled purchase involving a buyer whom the police previously arrested and persuaded to cooperate. In May 2014, Panin was sentenced to eight years in prison, though he insists that he never sold drugs and only used them.

In September 2019, the ECHR notified Khrunova that it had formally raised the issue of controlled purchases with the Russian authorities. The court indicated that it had reviewed multiple similar cases based on appeals by Russian citizens and discovered procedural violations, particularly a lack of oversight on controlled purchases. The ECHR asked Russian officials to explain what measures it was taking (including new legislation) to combat the problem.

Human rights activists hope the ECHR can force Russia to overhaul its system of controlled purchases

Irina Khrunova told Meduza that the ECHR’s appeal to the Russian authorities indicates that the court could also prepare a so-called pilot judgment on the issue of Russia’s controlled purchases. In other words, the ECHR could demand that Russia adopt new legislation or new regulations to resolve the existing problem. 

“Then the [Russian] authorities would have to report before the court on the measures they’ve adopted. But what the authorities would actually do — that belongs to the realm of divination and tea-leaf reading,” says Khrunova. 

Pavel Chikov, the head of the “Agora” human rights group, believes the government could solve part of the problem by creating an institution of judges who would monitor law-enforcement agencies’ intelligence and investigative actions. This would bolster oversight on special operations like controlled purchases, says Chikov.

“Before, when the ECHR issued pilot judgments, the [Russian] authorities reacted to them. Of course, crimes related to drug trafficking are a cornerstone of our law-enforcement system, so the situation here is more complicated. But it will be interesting to watch how this plays out. We’re seeing a new fault line between the Council of Europe and the Russian Federation,” Chikov says.

In its response to the ECHR, Moscow declared that Russia observes the rule of law

Russia had to respond to the ECHR’s concerns by October 30, 2019. In its answer (Meduza obtained a copy of the text), the Interior Ministry said that Russia is a state governed by the rule of law where citizens are guaranteed constitutional rights and freedoms. At the same time, officials acknowledged that the ECHR regularly receives complaints against anti-drug police officers in Russia, often relating specifically to the practice of controlled purchases. 

In its statement, the Interior Ministry said entrapment is unacceptable and emphasized that other evidence must corroborate anything discovered in a controlled purchase. For example, police are expected to put suspects under surveillance and confirm that they are aware of current drug prices and know how to obtain illegal drugs quickly.

The Interior Ministry also said more detailed regulations for controlled purchases have already been developed. In 2015, the Attorney General’s Office drafted such reforms, and the number of crimes related to illegal drugs would have been cut in half, if officers had actually started obeying the new recommendations, according to the newspaper Novaya Gazeta.

The ECHR has criticized Russia’s system of controlled purchases before, and the situation still hasn’t improved

In recent years, when reviewing complaints from Russian citizens convicted of drug crimes, the European Court has repeatedly cited problems in Russia’s use of controlled purchases. For example, in the June 2018 case “Kumitsky and Others v. Russia,” the ECHR identified shortcomings in the practice of controlled purchases and concluded that Russian courts fail to take adequate measures to verify claims by suspects that police officers manipulated the evidence against them. “But the system isn’t changing,” says Svetlana Dobrovolskaya, a lawyer at the Moscow Regional Bar Association. “Beginning with the case ‘Khudoerov v. Russia’ in 2005, the ECHR has been trying to find a way to force Russia to observe EU-wide investigative standards that prohibit entrapment.”

On top of all this, Russia adopted a law in 2015 that establishes the Russian Constitution’s primacy over rulings by the European Court of Human Rights, allowing state officials to ignore ECHR decisions when Russia’s Constitutional Court decides that they violate the Constitution. The European Council could ask Russia to leave the organization for refusing to implement ECHR rulings (which are binding on all member states), but Russia has itself threatened more than once in recent years to leave the council on its own (for example, when the Russian delegation was barred from the group’s parliamentary assembly for five years because of the annexation of Crimea and the armed conflict in eastern Ukraine). 

Some drug convictions in Russia are overturned, after ECHR rulings, but the defendants can be tried again

On February 17, 2016, police arrested 28-year-old Muscovite Alexander Borisov in the lobby of her apartment building. When searching his person, officers found two bags of amphetamines. The ECHR’s decision mentions that one of the police officers “slipped something into the plaintiff’s left pocket” during the search. Officials couldn’t find Borisov’s fingerprints on the bags, and there were no traces of the drugs on skin samples taken from his hands. Nevertheless, in the fall of 2016, a court sentenced Borisov to 4.5 years in prison for drug possession. He maintains his innocence and says the police planted the amphetamines in his pocket.

In July 2019, the ECHR awarded Borisov 8,000 euros (about $8,860) in compensation for his wrongful conviction, finding that the Russian courts failed to verify his allegations against the police. On October 30, the Russian Supreme Court’s Presidium considered the European Court’s ruling and overturned Borisov’s conviction, releasing him on his own recognizance. 

That same day, Russia’s Supreme Court overturned another drug conviction. On January 5, 2013, police arrested Roman Chebotayev, a 17-year-old man in the Volgograd region, following a controlled-purchase sting operation. He maintained his innocence and four months later he was sentenced to 6.5 years in prison. The European Court later ruled that Russia violated Chebotayev’s right to a fair trial, but the ECHR’s decision didn’t come until June 27, 2019 — literally a day after he finished serving his prison sentence and went free.

With the convictions overturned, the cases against Chebotayev and Borisov are now headed for retrials. Irina Khrunova, who’s representing both men in the European Court, emphasizes that the lower courts could rule for or against the defendants, regardless of the decisions by Russia’s Supreme Court and the ECHR. “Things happen. It’s all 50/50,” she says.