A/HRC/WGAD/2013/8

GE.13-15814

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-sixth session, 29 April–3 May 2013

No. 8/2013 (Russian Federation)

Communication addressed to the Government on 1 November 2012

Concerning Denis Matveyev

The Government replied to the communication on 29 December 2012.

The State is a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights, which extended and clarified the Working

Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. In accordance with its methods of work (A/HRC/16/47,

annex, and Corr.1), the Working Group transmitted the above-mentioned communication to

the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to the detainee) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, as established in the Universal Declaration of Human Rights and

in the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

United Nations

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General Assembly

Distr.: General

23 July 2013

Original: English

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(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation; or

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

According to the source, Denis Matveyev (hereinafter Mr. Matveyev), born 10

December 1977, is head of the civil society organization, “SMERSh,” that, inter alia, aims

to combat corruption. Mr. Matveyev does not have prior criminal record. He is a civic

activist with a college degree, is married and has a child.

4.

The source reports that on 16 July 2009, Mr. Matveyev was arrested near the Rayon

Park Majdan bus stop in Naberezhnye Chelny by the Federal Drug Control Service (FDCS)

of the City of Naberezhnye Chelny. Mr. Matveyev was not presented with an arrest

warrant.

5.

Mr. Matveyev was placed in the prison at Sviazhsk station in the township of

Nizhnie Vyazovie, which is run by the Federal Penitentiary Service. On 18 March 2010,

Mr. Matveyev was convicted for having committed offences under articles 30 and 228(1) of

the Criminal Code of the Russian Federation and sentenced to seven years’ imprisonment

by the City Court of Naberezhnye. On 8 June 2010, the Tatarstan Supreme Court reduced

the term of imprisonment to six years.

6.

The source submits that the non-observance of Mr. Matveyev’s right to a fair trial is

of such gravity as to render his ongoing detention arbitrary. The source makes the following

three arguments to sustain the claim: (a) the court allegedly did not analyse factual and

legal elements that would have distinguished entrapment from a legitimate form of

investigative activities; (b) the court allegedly did not give the defence the opportunity to

comment on or to rebut the evidence presented by the prosecution; and (c) the court

allegedly did not give the defence the opportunity to effectively present its legal argument

on the case.

7.

According to the source, four factual episodes involving Mr. Matveyev motivated

the charges pressed against him and his subsequent conviction.

8.

Firstly, on 25 June 2009, Mr. Matveyev purchased 0,597 grams of heroin mixture

from Ms. Fedorchuk and handed the drugs over to police officer Sharifyanov from

Naberezhnye Chelny Train Station Line Police Department. This operation was conducted

by policemen belonging to that department.

9.

Secondly, on 15 July 2009, Mr. Matveyev purchased 0.560 grams of heroin mixture

from Ms. Fedorchuk and handed it over to police agent Garayeva, who voluntarily

cooperates with law enforcement agencies. This operation was conducted by staff of

Naberezhnye Chelny FDCS.

10.

Thirdly, on 16 July 2009, Mr. Matveyev purchased 0.631 grams of heroin mixture

from Ms. Fedorchuk and handed it over to police agent Garayeva. This operation was also

conducted by the Naberezhnye Chelny FDCS.

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11.

Fourthly, when Mr. Matveyev was arrested on 16 July 2009, he was found in

possession of 0.575 grams of heroin mixture.

12.

The source states that Mr. Sharifyanov and Ms. Garayeva had asked Mr. Matveyev

to help them to purchase narcotics and that they gave him money for that purpose. In the

source’s view, Mr. Matveyev’s intent was to help Mr. Sharifyanov and Ms. Garayeva to

buy drugs, not to sell drugs.

13.

The materials of the case also imply that the only proof of Mr. Matveyev’s unlawful

activities is based on the results of a test drug purchase operation. None of the three cases

of the test drug purchase are grounded on any additional evidence of Mr. Matveyev’s

involvement. The drugs for Mr. Sharifyanov and Ms. Garayeva were purchased with their

money and at their request. The case contains no evidence to suggest that Mr. Matveyev

committed any similar actions in the past.

14.

The source submits that the crime was not initiated by Mr. Matveyev, but rather by

persons cooperating with law enforcement agencies. The money that Mr. Matveyev

received from Mr. Sharifyanov and Ms. Garayeva was used in its entirety to pay for the

drugs that were handed over to Mr. Sharifyanov and Ms. Garayeva. Mr. Matveyev did not

gain any personal benefit from these transactions.

15.

In the source’s view, Mr. Sharifyanov’s and Ms. Garayeva’s actions aimed at

inciting Mr. Matveyev to purchase drugs. As it follows from the materials in the case file,

Mr. Sharifyanov and Ms. Garayeva played the role of drug users. Aware that drug users

could suffer from withdrawal symptoms, Mr. Matveyev helped Mr. Sharifyanov and Ms.

Garayeva to buy drugs. Mr. Sharifyanov, Ms. Garayeva and other law enforcement agents

were fully aware that they had incited Mr. Matveyev to buy the drugs.

16.

According to the source, the case contains no evidence to suggest that Mr. Matveyev

would have committed this offence without the involvement of the law enforcement

agencies and their agents. The prosecution did not provide any evidence to prove that Mr.

Matveyev was involved in any unlawful actions other than those for which he was charged

with the participation of law enforcement agents. The actions of law enforcement personnel

were apparently based on some abstract “operational information” on Mr. Matveyev’s

alleged involvement in illegal drug dealing. However, during the court proceedings, no

evidence to support the existence of this “operational information” was considered, nor

were the sources of this “operational information” quoted.

17.

In essence, Mr. Matveyev’s actions were provoked by Mr. Sharifyanov, Ms.

Garayeva and their supervisors from law enforcement agencies, who deliberately incited

Mr. Matveyev to commit an offence. The source points out that the law enforcement

agencies used “entrapment” to obtain evidence. After the first episode, all those involved

should have been detained. However, the law enforcement agencies did not do this and

their agents continued to incite Mr. Matveyev to commit unlawful acts. Based on the

materials in the case file (more specifically, reports by Mr. Alekseyev, detective officer at

Naberezhnye Chelny Train Station Line Police Department, Mr. Rastsvetayev and other

detective officers from the same Police Department), the police knew the names of Mr.

Matveyev and Ms. Fedorchuk right after the test drug purchase operation on June 25, 2009.

However, Mr. Matveyev and Ms. Fedorchuk were not detained and their actions were not

repressed. Furthermore, according to the photo identification protocol of 1 July 2009, Mr.

Sharifyanov identified Mr. Matveyev’s photograph. In addition, in the course of the court

investigation when Mr. Sharifyanov was interrogated in court, he asserted openly that there

were no obstacles to detaining Mr. Matveyev and Ms. Fedorchuk on 25 June 2009.

However, the police acted in line with customary practice whereby the first test drug

purchase operation is used to confirm operational information, while another one targets

detaining the suspects.

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18.

During the court proceedings, Mr. Matveyev’s defence lawyer mentioned these

circumstances and provided arguments for law enforcement entrapment targeting Mr.

Matveyev. However, the court did not assess these circumstances, in either the court

hearings or the judgement. The court did not assess relevant factual and legal elements that

would have helped it to distinguish entrapment from a legitimate form of investigative

activity.

19.

The only direct evidence to prove Mr. Matveyev’s involvement in receiving and

transferring heroin are the testimonies from Ms. Garayeva, Mr. Sharifyanov and Ms.

Fedorchuk. Other evidence, including the heroin that was provided after the test purchases,

testimonies of witnesses and expert reports, are derivatives of the testimonies by three

people mentioned above. They are the only ones that link Mr. Matveyev to voluntarily

transferring heroin.

20.

Mr. Sharifyanov, a policeman with Naberezhnye Chelny Train Station Line Police

Department, played the role of drug user in the test drug purchase operation on 25 June

2009. According to his explanation, which he also confirmed in court, he received

information on Mr. Matveyev’s criminal activity from someone named Mr.

Bikmukhambetov (Salavat). At the trial, Mr. Sharifyanov said that he had received

information on Mr. Matveyev’s criminal activity from Salavat. Mr. Matveyev contended

that he only called Ms. Fedorchuk at Mr. Bikmukhambetov’s request and when she arrived,

she talked to Mr. Bikmukhambetov and Mr. Sharifyanov, while Mr. Matveyev stood aside.

However, Mr. Bikmukhambetov was never interrogated, at either the trial or the

preliminary investigation stage, even though the judge summoned him to the court hearings

several times. Mr. Matveyev contends that Mr. Bikmukhambetov was murdered on 23

September 2009 and the law enforcement authorities were aware of this fact but did not

inform the court. Mr. Matveyev also contends that Mr. Bikmukhambetov was present at his

meeting with Ms. Fedorchuk on 25 June 2009. He also asserted that several photographs, in

which Mr. Bikmukhambetov is not present, that are included in the case file are the result

of fraud. Testimony as to the validity of these conclusions is the fact that at neither the

preliminary investigation stage nor the trial could any of the six policemen involved in the

test drug purchase operation on 25 June 2009 say who had taken the photographs. They

stated that they could not remember. Another testimony to the credibility of the test

purchase operation of 25 June 2009 is the fact that the money apparently used to purchase

heroin was never confiscated from Ms. Fedorchuk, even though, according to the materials

in the case file, the money belonged to the Government.

21.

The verdict does not mention Mr. Bikmukhambetov at all; the court restricted itself

to the following statement: “The Court took measures to summon all witnesses mentioned

by the defence. The defence’s arguments were not confirmed in court, therefore there was

no need to summon additional witnesses.”

22.

Ms. Fedorchuk was targeted in the investigation as a person from whom Mr.

Matveyev obtained heroin for Mr. Sharifyanov and Ms. Garayeva. Based on Ms

Fedorchuk’s own testimony, she is a drug user. Before she was detained on 16 July 2009,

and on that day also, she injected up to one gram (1g) of heroin daily.

23.

The source draws attention to the facts regarding Ms. Fedorchuk’s connection to

Naberezhnye Chelny FDCS, which were established in the acquittal judgement in the case

of Mr. Mirzoyev by Naberezhnye Chelny Court, dated 16 February 2010.

24.

On 19 July 2009, investigative officer Kashapov (the same officer who investigated

the Matveyev case) ordered Ms. Fedorchuk’s release while her administrative arrest was

still in effect. At the court hearing in the case of Mr. Mirzoyev, Ms. Fedorchuk testified that

she had agreed to be involved in the test drug purchase operation in exchange for a promise

of her own release. During the proceedings of Mr. Matveyev’s case, Ms. Fedorchuk

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repeatedly changed her testimonies. During the court hearing on 8 February 2010, FDCS

produced a document certifying Ms. Fedorchuk’s cooperation with the agency to

incriminate Mr. Mirzoyev. Ms. Fedorchuk changed her testimony and said she was selling

heroin together with Mr. Matveyev. On 15 March 2010, when the representative of the

AIDS Centre submitted motions not to impose a prison term on Ms. Fedorchuk, she

asserted that the six grams of heroin that were confiscated during the search on 17 July

2009 was half the amount of heroin she had purchased with her and Mr. Matveyev’s

money, and that she had given the other six grams to Mr. Matveyev.

25.

At the court hearing, Drs. Tkachenko and Grekova testified that a drug-dependent

person suffering from withdrawal would say anything, including providing false

confessions. The defence presented all these circumstances in detail and in writing.

However, the court did not assess them nor present them in its judgement.

26.

Ms. Garayeva was targeted in the investigation as a person who voluntarily agreed

to cooperate with the law enforcement agencies to incriminate a drug dealer on 15 and 16

July 2009. The source contends that Ms. Garayeva’s “voluntary” cooperation with the

Naberezhnye Chelny FDCS may have been motivated by her drug dependence. During the

court proceedings, although Mr. Matveyev’s defence lawyer pointed out these

circumstances, the court allegedly did not assess them nor reflect them in its judgement.

27.

In addition, during the court hearings, both Mr. Matveyev and his defence lawyer

pointed out the following circumstances:

(a)

None of the sachets of heroin involved in the case bore any identifiable

fingerprints. This effectively means that it was not possible to establish that Mr. Matveyev

actually handled these sachets;

(b)

A hole measuring 80 x 130 mm was found in the pocket of Mr. Matveyev’s

shorts which were sealed and produced in court immediately after they had been unsealed.

It would have been impossible to store a sachet of heroin that was allegedly confiscated

from this very pocket. The question as to how a small sachet of drugs could be stored in

such pocket was not assessed during the court hearing, nor was it reflected in the

judgement. The judge only suggested indirectly that Mr. Matveyev could have torn his

pockets. However, the judge did not assess the circumstances that after Mr. Kashapov had

measured the holes, the shorts were sealed and stored as material evidence until they were

unsealed in court;

(c)

The expert’s report did not find any traces of heroin in the pocket of Mr.

Matveyev’s shorts. However, hand wipes tested, contained traces of heroin. According to

Mr. Matveyev, traces of heroin on his hands would be due to his washing the spoon which

Ms. Garayeva used to heat the heroin for injection in his presence;

(d)

In his report, Mr. Galliyev, the forensic expert, concluded that all the drugs

confiscated in this case came from the same batch. The prosecution used this information to

infer that the drugs given to Mr. Sharifyanov and Ms. Garayeva by Mr. Matveyev after the

test purchase operation, as well as the drugs confiscated from Ms. Fedorchuk, came from

the same batch. However, during the court hearing, Mr. Galliyev explained that “all drugs,

in principle, come from the same batch, namely ‘Afghanistan’”;

(e)

In view of the negligibly low purity of the mixture, the condition of the

device used to carry out a qualitative analysis of the substance is of paramount importance.

At the court hearing, Mr. Matveyev’s defence lawyer introduced a motion to obtain a

technical certificate for the gas chromatograph to establish its accuracy and the date of the

latest fine-tuning. However, the court refused to grant this motion. The court only asked the

expert whether the gas chromatograph had been operational and accurate;

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(f)

Psychiatrists and narcologists, Drs. Tkachenko and Grekova were

interrogated as witnesses and testified that in view of the negligible ratio of active

substances, if injected, the mixture that was confiscated would not produce any narcotic

intoxication, but would rather have a psychological effect on a drug user that could

alleviate withdrawal symptoms;

(g)

At the trial, the sachets were presented packed and sealed. The judge

dismissed the defence’s request to unpack the sachets for a more detailed examination,

although there were no obstacles to doing so.

28.

According to the source, the court did not assess the aforementioned circumstances

and they were not taken into account in the judgement. In providing grounds for the

judgement, the court formally listed materials in the case file, including the protocols of

investigative activities and testimonies by the prosecution witnesses. The defence

arguments set out above were not presented in the judgement; the court concluded as

follows: it “has no grounds not to trust the testimonies of the [prosecution] witnesses, as

they are consistent and in agreement with one another.”

29.

In the course of the court proceedings, the defence presented facts that testify to the

fabrication of the criminal case against Mr. Matveyev due to his human rights activities.

Witnesses Mr. Khusayenov and Mr. Kaurov, who were interrogated in court, also

confirmed this. The source alleges that the real reason for Mr. Matveyev’s detention relates

to his appeals to the Federal Security Service of the Russian Federation with respect to

police threats to plant heroin on him. Although the defence sought to call Mr. Valitov (Mr.

Matveyev’s fellow activist who, according to Mr. Matveyev, was also convicted for storing

drugs due to his human rights activities) as a witness, the court did not take measures to

ensure Mr. Valitov’s attendance. The defence had no means to deliver a witness from

prison. All the facts that the defence presented to support the connection between the

criminal case and Mr. Matveyev’s human rights activities were found “unsubstantiated”;

according to the court, those facts “are rebutted by the testimony of Ms. Fedorchuk. The

court trusts her testimony, as they are also supported by the testimonies of other witnesses

and the protocols of investigative activities”.

30.

According to the source, the materials in the case file do not contain information that

would support the finding that there was a preliminary agreement between Mr. Matveyev

and Ms. Fedorchuk to deal drugs. As the indictment and verdict show, Mr. Matveyev

received drugs from Ms. Fedorchuk only in exchange for money given to him by Mr.

Sharifyanov and Ms. Garayeva, in whose interests Mr. Matveyev was acting. The source

contends that there is no proof of any preliminary agreement between Mr. Matveyev and

Ms. Fedorchuk with regard to dealing drugs, apart from Ms. Fedorchuk’s testimony in

court.

31.

In the source’s view, there is no proof that Ms. Fedorchuk gave Mr. Matveyev

heroin to sell. The source submits that Mr. Matveyev did not receive heroin for sale from

Ms. Fedorchuk. He bought the drug directly from her using the money he received from

Mr. Sharifyanov and Ms. Garayeva.

32.

In its Plenum decree of 15 June 2006, “On judicial practice for criminal cases related

to narcotic drugs and psychotropic, dangerous and poisonous substances”, the Supreme

Court of the Russian Federation provides an explanation according to which “actions of a

mediator in selling or buying drugs shall be qualified as complicity in selling or buying

drugs depending on whose interests (the seller’s or the buyer’s) the mediator is acting in”.

Based on the material in the case file, the court should have qualified the actions

incriminating Mr. Matveyev as complicity in buying drugs in the interests of the buyer(s) –

namely, Mr. Sharifyanov and Ms. Garayeva – under article 33, section 5, and article 228,

section 1, of the Criminal Code of the Russian Federation.

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33.

Mr. Matveyev’s defence lawyer pointed out these circumstances in the court

hearings, as well as in their written comments. These were allegedly not taken into account

by either the first instance court, the appellate court or the court of supervisory instance. As

a result, Mr. Matveyev was sentenced to six years in a high security prison.

34.

In the light of the foregoing, the source submits that Mr. Matveyev’s right to a fair

trial, as enshrined, inter alia, in articles 10 and 11 of the Universal Declaration of Human

Rights, and article 14 of the International Covenant on Civil and Political Rights, has been

violated. As a result of alleged violations of the right to a fair trial, the source submits that

these are of such gravity as to render Mr. Matveyev’s detention arbitrary.

Response from the Government

35.

In its response dated 29 December 2012, the Government provided the Working

Group with the following information:

36.

Criminal proceedings were instituted against Mr. Matveyev on 17 July 2009 for

dealing in heroin during a test purchase operation on 16 July 2009. A body search of Mr.

Matveyev was conducted and he was detained in accordance with article 91 of the Code of

Criminal Procedure. The Naberezhnye Chelny City Court of the Republic of Tatarstan

applied a preventive measure against Mr. Matveyev on 18 July 2009, ordering his remand

in custody. A higher court upheld the court ruling.

37.

The Naberezhnye Chelny City Court sentenced Mr. Matveyev to five years and

seven months’ imprisonment for drug offences, with due account taken of the amendments

made to the sentence. Mr. Matveyev was found guilty, together with another convicted

person in this case, Ms. Fedorchuk, of selling heroin to Mr. Sharifyanov and Ms. Garaeva,

and keeping a large quantity of the drug for himself, without the intention of selling it.

38.

Ms. Fedorchuk did not deny in court that she had conspired with Mr. Matveyev to

purchase the drugs for herself and Mr. Matveyev with pooled money.

39.

Mr. Matveyev’s guilt was corroborated also by the testimony of Mr. Sharifyanov

and Ms. Garaeva, who stated that they had purchased heroin from Mr. Matveyev during the

test purchase operation, as well as by the log of telephone calls between Mr. Matveyev and

the buyers, by the results of the analysis of the type and quality of the seized controlled

substance, and by other evidence.

40.

The defence’s account of the facts, namely that the criminal case had been fabricated

by the law enforcement authorities in order to thwart the human rights work of Mr.

Matveyev, was not corroborated in court on examination. The court examination included,

at the request of the defence, interrogation of Mr. Galimov – who had been engaged in

public activities with Mr. Matveyev – about the facts; a statement by Mr. Shcharafutdinov,

a Federal Security Service officer, who said that Mr. Matveyev had not expressed any

concern that drugs might be planted on him; and a statement by Mr. Akramov, a detective

who denied the allegation that he had threatened to plant drugs on Mr. Matveyev because

the police department administration was dissatisfied with his activities.

41.

Moreover, Ms. Grekova, a substance abuse professional, showed that Mr. Matveyev

was in the records of the drug abuse clinic, where he had been sent on at least two previous

occasions.

42.

Mr. Matveyev’s assertion that he was only helping Mr. Sharifyanov and Ms.

Garaeva to purchase drugs with their money is untenable, as Ms. Fedorchuk flatly stated

that they had purchased the heroin with money that she and Mr. Matveyev had in common

and, at Mr. Matveyev’s request, she had parcelled up the heroin with “receipts” and given

him the exact quantities, as requested.

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43.

The court had no reason to mistrust her testimony as it tallies not only with the

testimony of Ms. Garaeva and Mr. Sharifyanov, who stated that they had called Mr.

Matveyev, negotiated the sale of heroin and directly paid him money when they received

the drugs, but also with other evidence.

44.

Mr. Matveyev’s assertion that the testimonies of Ms. Fedorchuk and Ms. Garaeva

are unreliable because they use drugs is speculation.

45.

During the judicial proceedings exhaustive measures were taken to call Mr.

Bikmukhametov to court as a witness, since Mr. Matveyev had alleged that he was present

during the drug handover. However, Mr. Matveyev did not provide the court with his

personal information or whereabouts. While the defence identified him as a witness, it did

not take any steps on its own to ensure that he would appear before the court.

46.

Moreover, the testimonies of Mr. Sharifyanov and Ms. Fedorchuk suggest that Mr.

Bikmukhametov was not present at the time of the sale of heroin by Mr. Matveyev.

47.

With regard to the judgement rendered in Mr. Mirzoev’s case, to which Mr.

Matveyev refers, the Naberezhnye Chelny City Court did in fact acquit him on 18 July

2009 of selling 4.68 grams of heroin to Ms. Fedorchuk. However, the cassational court’s

judgement was reversed, and Mr. Mirzoev was subsequently convicted of the offence by

that same court, on 12 July 2010, and sentenced to imprisonment. Ms. Fedorchuk’s

involvement in the test purchase operation in the Mirzoev case does not undermine the

witness’s credibility in the Matveyev case. She was brought into the police operation after

being held for questioning on suspicion of drug dealin,g for the purpose of identifying the

persons selling her drugs.

48.

After examining Mr. Gaptelkhaev and Mr. Zinnurov, who were official witnesses

present during the body search of the convicted person (Mr. Matveyev) and who had

testified that at the time a hole in Mr. Matveyev’s shorts pocket was no bigger than 2 cm,

the Court reasonably concluded that it might contain a packet with drugs. Mr. Matveyev’s

shorts were seized a few days later, which does not rule out the possibility that they were

subsequently torn or wilfully damaged by the convicted person himself when they were in

his possession.

49.

The assertion that the amount of the active ingredient in the drug compound was so

negligible as to preclude the criminal prosecution of Mr. Matveyev is irrelevant, as the

mass of a narcotic is determined by the overall weight of the compound containing it, in

accordance with paragraph 4 of decree No. 14 of 15 June 2006 of the Plenum of the

Supreme Court, “On judicial practice for criminal cases related to narcotic drugs,

psychotropic, dangerous and poisonous substances.

50.

The complainant claims that law enforcement officers had provoked him into

dealing in drugs, in violation of the obligations undertaken by the Russian Federation under

the Universal Declaration of Human Rights and the International Covenant on Civil and

Political Rights. However, the Russian Federation follows the practice of the European

Court of Human Rights in such matters. In particular, in its judgement in the case of

Ramanauskas v. Lithuania,PF1

FP the European Court noted that it was aware of the difficulties

inherent in law enforcement authorities’ task of detecting and investigating offences; to

overcome those difficulties, they were required to make use of undercover agents,

informers and covert practices. The challenge is to avoid provocative action and incitement

to crime. The European Court held that acts by law enforcement authorities and agents

P1

P See European Court of Human Rights, Ramanauskas v. Lithuania, application No. 74420/01,

judgement of 5 February 2008.

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acting on their instructions should be considered unlawful if they exert such an influence as

to incite the commission of an offence that would otherwise not have been committed.

51.

As the criminal case materials and testimonies of Mr. Miftakhov and Mr. Alekseev

indicate, the law enforcement officials conducted the test purchase operation involving Mr.

Matveyev on the basis of relevant decisions and only after the Federal Drug Control

Service officials had received an operations report that the convicted person was involved

in drug trafficking.

52.

Neither the law enforcement authorities nor the persons acting as buyers took any

action during the operation to coerce the convicted person into committing a drug offence

through persuasion, threats, bribery or blackmail.

53.

Mr. Matveyev himself could not but understand the implications and significance of

his actions. It is clear that he was aware of what he was doing, and he and Ms. Fedorchuk

had established an effective and long-standing pattern of dealing in drugs.

54.

The police operations were carried out repeatedly because of the special nature of

leading investigations into this category of offence and the need to obtain and corroborate

evidence that Mr. Matveyev was guilty of criminal acts.

55.

In any case, given the changes made to the judgement, all instances of his criminal

activities involving dealing in drugs are characterized as a single offence.

56.

The European Court has repeatedly pointed out that it is necessary to establish clear

and predictable procedure for investigations to ensure that Government bodies act in good

faith, and special operations must have a specific goal and be conducted against a particular

person.PF2

FP

57.

It should be noted, in the light of the judgement of the European Court of Human

Rights in the case of Khudobin v. Russia,PF3

FP that despite the absence of information on Mr.

Matveyev’s criminal past, there was very specific information about his involvement in

drug trafficking.

58.

As for the assertion that the judicial proceedings were unfair, the European Court

has already emphasized in its decisions,PF4

FP that a fair hearing requires the impartiality of the

court and observance of specific procedural rules.

59.

The judgement rendered in the Matveyev case was the outcome of public and open

proceedings, in accordance with the presumption of innocence and the equality of the

defence and prosecution. He was given every opportunity to present his case and answer the

charges against him, in person and through his lawyer, in courts of first, second and

supervisory instances. He has taken advantage of those opportunities, and, on the basis of

the adversarial nature of the parties, the court has ruled on the lawfulness of the police

operation and given due consideration to the arguments of the defence and the prosecution.

60.

Mr. Matveyev’s application for a criminal investigation into the falsification of

documents by an investigator of the investigating agency of the Naberezhnye Chelny

investigative department, a unit of the Investigative Committee attached to the Office of the

Procurator of the Russian Federation for the Republic of Tatarstan, was turned down on 5

P2

P See European Court of Human Rights, Lüdi v. Switzerland, application No. 12433/86, judgement of

15 June 1992.

P3

P European Court of Human Rights, Khudobin v. Russia, application No.59696/00, judgement of 26

October 2006.

P4

P See in particular, European Court of Human Rights, Vanyan v. Russia, application No. 53203/99,

judgement of 15 December 2006

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10

August 2009. The relevant evidence was reviewed by the Office of the Procurator of the

Russian Federation. The decision was deemed to be lawful and valid.

61.

The detention conditions in the institutions of the penal correction system in which

Mr. Matveyev was held met the requirements of Russian legislation.

62.

In accordance with article 12 of the Penal Enforcement Code, Mr. Matveyev has the

right to submit proposals, applications and complaints to the administration of institutions

and high-level Government bodies, including the courts, procuratorial authorities, local

authorities, voluntary associations and intergovernmental bodies for the protection of

human rights and freedoms. Mr. Matveyev sent 162 communications to various authorities

during his stay in State remand centre No. 3 (FKU SIZO-3 UFSIN), and 368 when he was

in State penal colony No. 5 (FKU IK-5 UFSIN) of the Russian Federal Penal Enforcement

Service Department for the Republic of Tatarstan. No breach of law on the part of officials

of remand centre No. 3 and penal colony No. 5 with respect to Mr. Matveyev was tolerated.

63.

There is thus no reason to believe that, in the case of Mr. Matveyev, the Russian

Federation was in breach of its obligations under the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights.

Further comments from the source

64.

The source has not provided any further comments.

Discussion

65.

In its response of 29 December 2012, the Government relies heavily on the case law

of the European Court of Human Rights, which in its view, justify the police agents’ actions

in the Matveyev case. In particular, the Government contends that authorities and agents

acting on their instructions should be considered unlawful only if they exert such an

influence as to incite the commission of an offence that would otherwise not have been

committed.

66.

The Government contends that, in the light of the judgement of the European Court

of Human Rights in the case of Khudobin v. Russia, despite the absence of information on

Mr. Matveyev’s criminal past, “there was very specific information on his involvement in

drug trafficking.” However, at the same time, the Government admits that the “operation

involving Mr. Matveyev” was based on an “operations report” that Mr. Matveyev was

involved in drug trafficking. Indeed, that “operations report” was not presented at the trial

nor reviewed by the judges, nor was it ever disclosed to the defence.

67.

In this regard, the Working Group recalls that in other cases involving the Russian

Federation, the European Court of Human Rights found that “a mere claim at the trial by

the police to the effect that they possessed information concerning the applicant’s

involvement in drug-dealing, a statement which does not seem to have been scrutinised by

the court, cannot be taken into account.”PF5

FP

68.

The Working Group concurs with the European Court which stated in the Khudobin

v. Russia case, that the “entrapment defence” put forward by the applicant required

appropriate review by the trial court, especially as the case contained certain prima facie

evidence of entrapment.PF6

F

PSuch review by the trial court would be crucial where the

P5

P European Court of Human Rights, Vanyan v. Russia, application No. 53203/99, judgement of 15

December 2005, para. 49.

P6

P European Court of Human Rights, Khudobin v. Russia, application No. 59696/00, judgement of 26

October 2006, para. 133.

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11

operation (in this case, the test purchase) was not subjected to judicial review or other

supervision. PF7

FP

69.

The Working Group notes that in the Vanyan v. Russia case, the European Court

found a violation of the right to a fair trial because “the police had not confined themselves

to investigating the applicant’s criminal activity in an essentially passive manner.PF8

FP The

European Court also found a violation of the right to a fair trial in the case where the

applicant, “tempted by the money,” accepted the request by undercover police officers who

offered him money to supply them with heroin.PF9

FP

70.

The Working Group concurs with the above approach and considers that in the case

under consideration, the undercover police and their agents did not confine themselves to

investigating Mr. Matveyev’s alleged criminal activity in a passive manner, but rather

incited the commission of the offence. There is nothing to suggest that the offence would

have been committed had it not been for the intervention of the undercover agents. The

conviction of Mr. Matveyev was based mainly on evidence obtained as a result of the

police operation.PF10

FP

71.

The Working Group considers that the non-observance of the international norms

relating to the right to a fair trial in the case under consideration, namely as established

under article 10 of the Universal Declaration of Human Right and article 14, paragraph 1,

of the International Covenant on Civil and Political Rights, is of such gravity as to render

the deprivation of liberty of Mr. Matveyev arbitrary.

72.

It considers that the deprivation of liberty of Mr. Matveyev falls within category III

of the arbitrary detention categories referred to by the Working Group when considering

cases submitted to it.

73.

The Government does not refute the fact that Mr. Matveyev is a civic activist and

the head of the civil society organization, “SMERSh”, that, inter alia, aims to combat

corruption.

74.

It is noteworthy that the first “test drug purchase operation” involved Mr. Matveyev

soon after the local practice of “charging detainees for meals” in police detention facilities

had been exposed by Mr. Matveyev, himself, and revoked upon this exposure.

75.

On the basis of the information received, the Working Group considers that the

Government employed “entrapment” to punish Mr. Matveyev for his human rights

activities, in violation of articles 19 and 20 of the Universal Declaration of Human Rights

and articles 18 and 19 of the International Covenant on Civil and Political Rights. It

considers that the deprivation of liberty of Mr. Matveyev falls within category II of the

arbitrary detention categories referred to by the Working Group when considering cases

submitted to it.

Disposition

76.

In the light of the foregoing, the Working Group on Arbitrary Detention renders the

following opinion:

P7

P Ibid., para. 135.

P8

P European Court of Human Rights, Vanyan v. Russia, para. 49; see also Teixeira de Castro v.

Portugal, application No. 44/1997/828/1034, judgement of 9 June 1998, para. 38.

P9

P European Court of Human Rights, Teixeira de Castro v. Portugal, application No. 44/1997/828/1034,

judgement of 9 June 1998.

P10

P See European Court of Human Rights, Vanyan v. Russia, para. 49.

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12

The deprivation of liberty of Mr. Matveyev is arbitrary, being in contravention of

articles 10, 19, and 20 of the Universal Declaration of Human Rights and article 14,

paragraph 1, article 18, paragraph 1, and article 19, paragraph 2 of the International

Covenant on Civil and Political Rights; it falls within categories II and III of the

arbitrary detention categories referred to by the Working Group when considering

cases submitted to it.

77.

Consequent upon the opinion rendered, the Working Group requests the

Government of the Russian Federation to take the necessary steps to remedy the situation of

Mr. Matveyev and bring it into conformity with the standards and principles set forth in the

Universal Declaration of Human Rights and the International Covenant on Civil and

Political Rights.

78.

The Working Group is of the opinion that, taking into account all the circumstances

of the case, the adequate remedy would be to release of Mr. Matveyev and to accord him an

enforceable right to compensation in accordance with article 9, paragraph 5, of the

International Covenant on Civil and Political Rights.

[Adopted on 2 May 2013]