Alina Burlaku v. Russian Federation

The author of the communication is Ms. Alina Burlaku, a Moldovan national born in 1993. She claims to be a victim of violation, by the Russian Federation, of her rights under articles 2 (3), 7, 14 (1); 14 (3) (b), 14 (3) (d), and 14 (3) (g) of the Covenant. The Optional Protocol entered into force for the Russian Federation on 1 January 1992. The author is not represented by counsel.

In March 2014, a man called ‘Yakov’ contacted the author in social media. They met a few times and started communicating regularly before Yakov claimed financial troubles and told her about a rich English lord, who wants to meet a girl for a serious relationship. He asked the author to help find a girl for a fee, which they would split. Yakov said that a representative of the lord named ‘Arthur’ was dealing with all the logistics. The author refused, saying she would not be able to find a girl willing to go to England. Yakov kept insisting and at some point suggested she lie to Arthur, and promised that Arthur would not reclaim the money if the girls later refused to go. On this condition, the author agreed to meet with Arthur.

On 22 May 2014, Arthur called the author, after Yakov’s preliminary call. The author met with Arthur (undercover police agent G.) on the same date. Their conversation was recorded. Arthur asked the author whether she met their mutual acquaintance and showed her on his phone the pictures of the girls sent by the author to Yakov. They agreed to meet on 27 May 2014, when the author promised to come with the girls.

On 27 May 2014, the author met Arthur again, bringing four girls who answered her social media post. She told the girls that the lord’s assistant would be doing a casting and asked them to wait in a park. None of the girls but one had necessary travel documents or intended to travel to England. They came mainly for modelling prospects or out of curiosity. The author never asked for their documents. Although she knew that the girls would not travel to England, the author nevertheless assured Arthur that they would and accepted the payment. After that, Arthur offered a lift to the author and the girls. When the author and two girls got in the car, the author was detained by the police, and the girls were told that they were just ‘sold’.

The author was taken to a police station. She was charged under article 127.1 (2) (a) of the Criminal Code for trafficking in human beings for sexual exploitation.⁵ The author was interrogated on 27 May 2014. On 28 May 2014, after spending a night in poor detention conditions and in absence of a lawyer, she had to sign the record of her interrogation. Although the author noticed some changes in the record comparing to her statements given on 27 May 2014, she signed the document, thinking that it would not have legal effect since she would do so without a lawyer.

5. Article 127.1 of the Criminal Code: Trafficking in Human Beings [1. The purchase and sale of a person, other transactions involving a person, as well as recruitment, transportation, transfer, harboring, or receipt of a person committed for the purpose of his or her exploitation, shall be punishable by forced labor for a term of up to five years or by imprisonment for a term of up to six years].” [2. The same actions committed: a) in respect of two or more persons shall be punishable by imprisonment for a term of eight to fifteen years, with restriction of liberty for a term of up to two years or without such restriction]. ↩

On 15 September 2014, the author had a face-to-face confrontation with police officer G. (‘Arthur’) during which he denied any knowledge of Yakov. He said that the author’s name and phone number were received from the main police Directorate as part of operational information which served as a basis for the police covert investigative measures ‘controlled operation’ and ‘undercover infiltration’.,

On 8 October 2014, to prove her communication with Yakov, the author requested the investigator to retrieve relevant information from her mobile phone, which was taken from her by the police upon her detention and to retrieve the call history details from the telephone company. She indicated the approximate dates and timing of Yakov’s and Arthur’s calls. She also requested the police to establish Yakov’s identity and to call him for questioning and for face-to-face confrontation.

On 16 October 2014, the Tagansky District criminal investigation police unit denied the author’s request to identify and summon Yakov for questioning in view of sufficient evidence collected against the author under article 127.1 (2) (a) of the Criminal Code. The investigator stated that the existence of ‘Yakov’ was the author’s defence tactics chosen to avoid criminal liability. The investigator agreed to retrieve information from the author’s mobile phone but refused to request the call history details from the telephone company on the ground that the conversations could not be extracted from the transcript and it would serve no purpose. The author filed similar motions, unsuccessfully, in the trial proceedings.

On 28 October 2014, the author was informed that on 15 September 2014, the investigator requested the 6th district police unit in Moscow, which carried out the covert operation, to identify Yakov. The police unit reported on 27 October 2014 that despite measures undertaken for which there are no details or information, the identification was impossible. The request of the investigator and the relevant police report were not included in the author’s criminal file. On 14 November 2014, she requested the Head of the Criminal Investigation Department in Moscow to provide her with details on the measures undertaken to identify Yakov. Having received no answer, she resubmitted her request on 6 March 2015.

On 28 October 2014, the author was present when the investigator examined her mobile phone. The name of Yakov was missing from the contacts, all call entries from and to Arthur, as well as sms messages from Yakov disappeared.. The author made a comment to this end in the examination report. She later informed the trial court that all relevant entries were deleted and requested that a technical examination of her phone be carried out to verify her allegations. The court denied her request.

On 6 March 2015, the author filed a complaint with the Tagansky Interdistrict Prosecutor’s Office alleging intentional concealing of Yakov’s identity by the police and falsification of investigation in his identification. She claimed that the police did not carry out any investigative measures. Her complaint was rejected by the prosecutor’s office on 24 April 2016. The author appealed unsuccessfully against the prosecutor’s decision to the Tagansky Regional Court and to the Moscow City Court, which both rejected her appeals on 30 January 2017 and 14 September 2017, respectively. The decisions were based on the fact that the pretrial proceedings in the author’s criminal case had been completed, and the issues she raised were not related to the conduct of the criminal prosecution.

On 4 March 2015, the author went on hunger strike until Yakov was identified. During the trial court hearing she was weak and asked the court for a break. Her request was rejected. An ambulance had to be called after the author finished her concluding remarks.

On 12 March 2015, the author was sentenced to 5 years in prison by the Tagansky District Court in Moscow. The court found that the covert police operations were carried out and documented in accordance with duly authorized decisions. The necessity of the operations was justified by information received from the 18th and 23d departments of the main police Directorate which established that an unidentified woman named ‘Alya’ was a member of a criminal group involved in trafficking in human beings. The court confirmed that the acts of trafficking committed by the author were established by officer G. during the police operation and that there was no provocation in officer G.’s actions. The trial court dismissed the author’s claims about the provocation by Yakov referring to them as defence tactics. The court relied on the results of the police report of 27 October 2014 concerning impossibility to identify Yakov. The court stated that the subject matter before it was trafficking in human beings committed by the author and that the alleged unlawful activity by Yakov was irrelevant to the case.

On 23 March 2015, the author filed an appeal to the Moscow City Court. She reiterated her claim about police provocation before the covert operation. She claimed, among other, that neither the trial court decision, nor the court documents or case materials contained any proof of her involvement in trafficking in human beings. Police officers – witnesses in the case, including officer G. could not provide relevant information either, referring to the secrecy of the source. The trial court did not try to establish any facts in support of the police statements that she was engaged in trafficking activities before the author’s first contact with the police undercover officer G. (Arthur), did not assess the source referred to by the police officers, and did not assess whether it could be shared with the defence. On 5 November 2015, the author’s appeal was rejected by the Moscow City Court. On 22 December 2015, the author’s cassation review appeal was rejected by a judge of the Moscow City Court Presidium. On 6 June 2016, the author’s second cassation review appeal was rejected by the Supreme Court.

In 2018, the author was banned from entering the State Party. On 21 January 2020, the Second Cassation Court in Moscow, acting on a cassation review request submitted by the Prosecutor General’s Office on 4 September 2019, reclassified the author’s charges of trafficking in human beings to attempted trafficking and changed her sentence from five years to three years and eight months in prison. By then the author had already served her sentence and was released in 2018.

The author claims a violation of article 2 (3) of the Covenant because the domestic authorities refused to investigate her allegations that the police falsified investigation on Yakov’s identity.

The author claims a violation of article 7 of the Covenant because she was held in a metal cage during the trial at the Tagansky Court room. During the hearing she was on hunger strike and asked the court for a break, which was refused.

The author claims a violation of article 14 (1) of the Covenant because she was found guilty of a crime which was incited and provoked by the police and her related claims have not been assessed by courts.

She claims that article 14 (3) (b) of the Covenant has been violated because she was not informed of any investigative decisions made following her requests of 8 October 2014 (see para. 2.6 above) and could not prepare adequately her defence.

The author claims a violation of article 14 (3) (d) of the Covenant because Yakov was not summoned to the court. Yakov was the key witness and could have confirmed that there has been police provocation in her case.

Finally, the author claims a violation of article 14 (3) (g) of the Covenant because she had to sign an edited interrogation record of 28 April 2014 in the absence of her lawyer and while she was in a bad physical state after spending the night in inadequate conditions of detention.

On 6 December 2019, the State Party submitted its observations on the merits of the communication denying any violation of the author’s rights. The State Party indicates that on 5 April 2019, the Moscow City Prosecutor’s Office submitted a cassation review appeal in the author’s case to the Moscow City Court asking to annul the sentence and send the criminal case for a new trial. The request was rejected by the Moscow City Court on 29 May 2019.

The State Party submits that the courts assessed the author’s claims thoroughly and in accordance with the procedural guarantees of fair trial. The State Party denies that there has been a violation of article 14 of the Covenant.

The State Party denies violation of article 7 and informs that during all trial and appeal stages the author was seated behind the protective installation, which is mandatory in criminal trials, according to law, for all accused who are held in pre-trial detention. The State Party submits that this is a necessary protective measure, and it is not intended to humiliate the accused. Criminal proceedings presuppose certain restrictive measures which would be unacceptable otherwise, such as for instance, pretrial detention.

The State Party denies violation of article 2 of the Covenant stating that the author had unhindered access to protect her rights at the stage of preliminary investigation and in court, including through submitting complaints against actions of state officials under article 125 of the Criminal Procedure Code.

On 23 January and 26 February 2020, the author provided her comments to the observations of the State party. She updates the Committee about the successful cassation review request by the Prosecutor General’s Office, upheld on 21 January 2020 by the Second Cassation Court in Moscow (see para. 2.14 above). The author submits that the prosecutor’s request only concerned the reclassification of the offence for which she was convicted and did not include the issue of police provocation. It therefore does not address her claims, as her conviction remains on record. The author also informs the Committee about a permanent prohibition to enter the Russian Federation imposed on her by the State Party in 2018.

The author specifies that in her claims under article 7 of the Covenant she referred to the fact that she was brought to trial court hearing seven days into her hunger strike, while the State Party observations only refer to the arrangements in the courtroom and her being held in a cage.

On 26 November 2020, the State Party submitted additional observations stating that the author concurred with the cassation review request filed by the prosecutor’s office to the Second Cassation Court in Moscow. Neither the author nor her lawyer raised claims concerning police provocation. The State party adds that the author failed to exhaust domestic remedies as she has not appealed against the decision of the Second Cassation Court to the Supreme Court.

On 3 December 2020, the author submitted her additional comments regarding the State Party’s claim that she had not exhausted domestic remedies.⁶ The author submits that at the time of submission of her communication to the Committee she had exhausted all domestic remedies. The prosecutor’s cassation review request to the Second Cassation Court in Moscow in 2019 concerned only the reclassification of the final sentence. The appeal which the State Party claims the author should have submitted, would have to be submitted to the Supreme Court – the same court which has already considered the author’s cassation appeal in 2016. The author does not consider as an effective remedy reiterating once again her claims to the court which already discarded them previously.

6. The author’s request for additional comments was granted by the Special Rapporteur on New Communications and Interim Measures under the Rule 92 (7) and (8) of the Committee’s Rules of Procedure, on 7 December 2020. ↩

The author adds that since she was barred from entering the State Party, she was unable to communicate with her State appointed lawyer. She states that the State Party did not provide her with a copy of the Second Cassation Court decision before submitting its observations to the Committee, so that she could appeal it.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the State party’s argument that the author failed to exhaust domestic remedies since she failed to appeal the decision of the Second Cassation Court in Moscow dated 21 January 2020. The Committee notes that the final court (appeal) decision in the author’s case was adopted on 5 November 2015 by the Moscow City Court. The author also submitted two cassation appeals contesting the verdict in her case in a timely manner. The Committee notes that the cassation review proceedings in 2019 were initiated by the prosecutor’s office, therefore constituting extraordinary remedies. The Committee recalls its consistent approach that such extraordinary remedies do not constitute remedies that need to be exhausted for the purposed of article 5 (2) (b) of the Optional Protocol.⁷ The Committee is therefore, not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.

7. See, mutatis mutandis, communications Khmelevsky v. Belarus (CPR/C/139/D/2792/2016), para. 7.3; Alekseev v. Russian Federation (CCPR/C/109/D/1873/2009), para. 8.4; Kostenko v. Russian Federation (CCPR/C/115/D/2141/2012), para. 6.3; and Dorofeev v. Russian Federation (CCPR/C/111/D/2041/2011), para. 9.6. ↩

In relation to the author’s claims under article 2 (3) of the Covenant concerning lack of effective remedies to contest the proceedings aimed at identifying ‘Yakov’, the Committee notes that article 2 is of accessory nature and can be raised only in conjunction with substantive provisions of the Covenant.⁸ The Committee therefore finds this part of the communication inadmissible under article 2 of the Optional Protocol.

8. See communication M. v. Belgium (CCPR/C/113/DR/2176/2012), para. 6.5. ↩

The Committee notes that the author has not raised before the domestic authorities her claims about being brought to trial court during the hunger strike, which she alleges before the Committee under article 7 of the Covenant. In absence of indication that such remedies were unavailable or ineffective, the Committee finds these claims inadmissible under article 5 (2) (b) of the Optional Covenant.

The Committee notes the author’s claim that placing her in a metal cage during the court hearings contradicts article 7 of the Covenant. However, the Committee has consistently examined such treatment under the presumption of innocence guarantees of article 14 (2) rather than under article 7 of the Covenant.⁹ Even if it were to examine these claims under article 7, the Committee notes that the author did not bring her claims before the domestic authorities and did not provide any justification regarding unavailability or ineffectiveness of the domestic remedies. Accordingly, the Committee finds this part of the claim inadmissible under article 5 (2) (b) of the Optional Covenant.

9. See, for example, communications Yakubova v. Uzbekistan (CCPR/C/122/D/2577/2015), para. 9.4 and Khmelevsky v. Belarus, supra, para. 8.2. On article 7, see the Committee’s General Comment 20, paragraph 4. ↩

The Committee notes the author’s allegations under article 14 (3) (b) of the Covenant that her right to defence was violated because the Tagansky District criminal investigation police unit did not respond to her requests submitted on 8 October 2014. The Committee notes the author’s explanation in the submission that she learnt about these decisions at the end of the pretrial investigation, which was finalized on 28 October 2014, and that she brought up similar complaints in the trial and appeal courts. In absence of any further clarification on file, including on which particular decisions she intended to appeal outside the trial proceedings, the Committee finds this part of the author’s claim insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claim under article 14 (3) (d) of the Covenant that the trial court refused to summon ‘Yakov’ as a witness. The Committee, however, observes that the court relied on the results of the police investigation which was unable to identify ‘Yakov’. The Committee considers this part of the author’s claims insufficiently substantiated under article 14 (3) (d) and inadmissible under article 2 of the Optional Protocol.

In relation to the author’s allegations under article 14 (3) (g) of the Covenant that corrections and technical errors were made to the interrogation record of 28 October 2014, the Committee notes the lack of information indicating that such alterations affected the substance of her testimony or contributed to her conviction. The author mentions that a few sentences were added to the testimony she gave on 27 October 2014, in which she denied her guilt. Otherwise, the testimony remained the same. Since the author does not explain the impact of the alterations to her testimony on the trial and the verdict, the Committee finds this part of the author’s submission insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

The Committee finds the author’s claims under article 14 (1) of the Covenant sufficiently substantiated for purposes of admissibility and proceeds to their consideration on the merits.

The Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5 (1) of the Optional Protocol.

The Committee notes the author’s claim under article 14 (1) of the Covenant that she was a victim of a police provocation which led to her being sentenced for human trafficking. The Committee recalls that it is generally up to the courts of States parties to evaluate the facts and evidence in a particular case, and that it is not up to the Committee to review such evaluation, unless it can be ascertained that it was clearly arbitrary or amounted to denial of justice, or that the courts had violated their obligation of independence and impartiality.¹⁰

10. See communications G.J. v. Lithuania (CCPR/C/110/D/1894/2009), para. 8.10; V.K. v Russia (CCPR/C/116/D/2411/2014), para. 6.6; Akulich v. Belarus (CCPR/C/140/D/2987/2017), para. 7.2. ↩

The Committee also recalls that the principle of equality of arms, inherent in article 14 (1) of the Covenant and reflected in paragraph 13 of its General Comment No. 32 (2007), requires that both parties to criminal proceedings have equal procedural rights, unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.¹¹ The Committee notes that an undercover operation or use of an undercover agent is not, in and of itself, contrary to the standards of article 14 (1) of the Covenant. However, the Committee considers that where the State, through law enforcement agents, provokes or instigates the alleged criminal conduct, in the absence of an objective evidence that the accused was predisposed to commit the offence, a concern arises under this principle.¹² In addition, in such circumstances the equality of arms principle implies that the domestic courts should subject allegations of provocation to careful adversarial scrutiny..¹³

11. General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32. ↩
12. See communication Kudryashov v. Kyrgyzstan (CCPR/C/138/D/2998/2017), para. 8.6. ↩
13. Ibid. See also,the European Court of Human Rights, Ramanauskas v. Lithuania (application No. 55146/14).; ↩

The Committee notes the author’s argument that her claims of police provocation were not properly examined by the domestic courts, which dismissed them as mere defense tactics. The Committee observes from information on file, that the covert investigative measure against the author consisted of two parts: the controlled operation of 22 May and the undercover infiltration of 27 May 2014, both initiated solely on the basis of undisclosed “operational information” supplied by the Main Police Directorate (see para. 2.12 above). According to the documents on file, including the testimony of officer G., the operative information indicated that it was impossible to document criminal activity of the suspected woman ‘Alya’, without resorting to a covert operation. The domestic courts, however, did not seek to establish whether the author had engaged in any prior unlawful activity that might have justified the covert operation.

The Committee further notes that the author consistently and in detail alleged that she was provoked by a man who called himself Yakov, who introduced her to ‘Arthur’ for the purpose of committing a crime which she never previously committed and would not have committed otherwise. She sought to substantiate her claims by requesting call history records from the telephone provider and by presenting a detailed chronology of events, pointing out inconsistencies in the testimony of officer G. and in the records of their meetings. However, none of these claims were assessed by the courts. The only evidence relied upon by the domestic courts was obtained under police control during the covert operations, and the only witnesses questioned at trial were the police officers who had participated in them. The courts rejected all claims relating to events preceding the covert operations.

The Committee considers that these omissions indicate lack of fairness of the proceedings and failure to observe the equality of arms principle. It concludes that the domestic courts failed to discharge their duty to examine the author’s allegations of police provocation and thereby deprived her of the procedural guarantees enshrined in article 14 (1) of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the author’s rights under article 14 (1) of the Covenant.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is under an obligation to provide the author with adequate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.

I agree with the decision of the Committee to conclude to a violation of Article 14(1) of the Covenant due to the lack of guarantees surrounding the use by police officers of undercover agents. However, since the present case was one of the very first opportunity the Committee had to clarify its approach to the conciliation between the right to a fair trial and the special investigation means used by domestic authorities, I regret that the standards and assessment criteria were not more elaborated on in paragraphs 9.3 to 9.6.

In this regard, a first element should have been highlighted by the Committee. The factual background raises the question of sexual exploitation and human trafficking of persons, which must be eradicated and investigated by States Parties. Therefore, there is no doubt that under Article 8 of the Covenant, States have the obligation to protect victims from such horrendous crime, which might imply special techniques of investigation, such as undercover operations (Article 20 of the UN Convention Against Transnational Organized Crime).¹⁴ Therefore, in para. 9.3, the Committee should first have clarified that under the Covenant, States might have the positive obligations to prevent the type of transactions described in the factual background, which may qualify as sexual exploitation or human trafficking, before assessing the compatibility of undercover operation under Article 14 of the Covenant. It is important to avoid sending blurred messages to domestic authorities, and in particular, law enforcement bodies, especially when such acts and behaviors are at stake.

14. See especially Article 20(1) : “If permitted by the basic principles of its domestic legal system, each State Party shall, within its possibilities and under the conditions prescribed by its domestic law, take the necessary measures to allow for the appropriate use of controlled delivery and, where it deems appropriate, for the use of other special investigative techniques, such as electronic or other forms of surveillance and undercover operations, by its competent authorities in its territory for the purpose of effectively combating organized crime.” ↩

In addition, the Committee should have clarified its methodology to assess the compatibility of the use of such a special investigation measure and the right to a fair trial. In the very same paragraph, the Committee referred in a footnote to the Grand Chamber judgment of the European Cour of Human Rights in the Ramanauskas case adopted in 2008.¹⁵ And indeed, in this corruption case, after almost twenty years of unclear jurisprudence, the Court summarized the “factors” used and its methodology: whether the operation was supervised by a judge; what were the reasons for suspecting the person of the alleged offence; whether the suspected person had a criminal record or any “predisposition” to commit the alleged offence when approached by the police. As framed by the European Court, States must establish “objective suspicions” (para. 56). In its subsequent practice, the Court developed the “substantive test of incitement”, i.e. “whether the offence would have been committed without the authorities’ intervention, that is to say whether the investigation was “essentially passive” ; and the procedural test of incitement, i.e. “the way the domestic courts dealt with an applicant’s plea of incitement.”¹⁶

15. Application No. 55146/14, 5 February 2018, paras. 49-61. ↩
16. European Court of Human Rights Rights, Ramanauskas v. Lithuania (No. 2), 20 February 2018, paras. 56-61. ↩

In the present case, the Committee follows more or less implicitly the very same methodology but without spelling it out and mixing up procedural and substantive parts of the test (for instance, in paras. 9.4 and 9.5). Considering the need for States to implement in practice and in a consistent way their obligations under the Covenant and the obligations they have under other international regimes on human trafficking but also dealing with corruption, money-laundering activities, drug trafficking, a more rigorous methodology must be drawn by the Committee in future cases dealing with police entrapment allegations and the use of special techniques of investigations.