Author: Mikhail Golichenko, Canadian HIV/AIDS Legal Network
16 July 2011 marked the second anniversary of the arrest of Denis Matveyev, a Russian Human Rights activist who was accused of drug trafficking and sentenced to six years in a high-level security prison. During his three-year fight against corruption in the Russian city of Naberezhnie Chelny, Matveyev got under the skin of authorities on several occasions.
Two months before his arrest, Matveyev managed to disclose a scheme that police officials were using to pocket public money and that of detainees in temporary detention centres.
In addition to his anti-corruption and human rights activities, Matveyev volunteered for harm reduction projects to help people who use drugs to reduce negative health consequences of illicit drug use, such as HIV and other blood-borne diseases. He often had contacts with people who use drug, which apparently played a role in how police retaliated.
Matveyev was apprehended on 16 July 2009 and has remained in custody since then.
On 21 July 2009, the Press Service of the Tatarstan Interior Ministry released information on the detention of Matveyev, who was suspected of drug trafficking. The same information was also made public on the website of the Russian Federation’s Interior Ministry. Not many offenders in Russia are awarded with such high-level attention.
On 18 March 2010, Matveyev was convicted and sentenced to six years in a high-security prison.
In violation of the “fair-trial” principle, the court completely ignored defence arguments for entrapment, lack of sufficient proof for incriminating acts and the incorrect qualification of their severity. In total, there were more than 60 gross violations of the right to fair trial in the case of Matveyev.
The prosecution was based on the results of three test purchase operations. The first operation has been carried out by the undercover police officer who mimicked a drug user suffering drug withdrawal syndrome. The other two test purchase operations were carried our with help of a drug user whom police use as an undercover agent. Police documented that, upon request of police undercover agents and for their money, Matveyev purchased heroin from another person (a drug user Fedorchuk) and handed over it to agents. There was no information produced by police to prove that Matveyev was ever engaged in any of the illicit drug activities apart from those instigated by the police agents. Matveyev denied his guilt in the drug trafficking.
It was obvious that he was incited by police agents, who were or pretended to be people addicted to drugs suffering withdrawal, in order to purchase drugs to alleviate drug withdrawal symptoms. Aside from the police entrapment, there was no other evidence that Matveyev had ever engaged in illicit drug use. The court did not assess these facts, despite numerous motions of the defence. These circumstances of the case of Matveyev clearly resemble those of Khudobin v. Russia and Vanyan v. Russia, where the European Court of Human rights found a violation of the right to a fair trial because the domestic court “did not analyze the relevant factual and legal elements which would have helped it to distinguish entrapment from a legitimate form of investigative activity”.
It is important to notice that the only direct evidence to prove Matveyev’s involvement in receiving and transferring heroin were testimonies of the two police agents and Fedorchuk. Only they link Matveyev to heroin. Other proof, including heroin that was surrendered by the agents after test purchases, testimonies of attesting witnesses, scientific reports, are meaningless and disconnected from Matveyev without testimonies by those three.
The first test purchase operation was conducted by police agent Sharifyanov, who was playing the role of a person addicted to drugs. Matveyev contended that Sharifyanov incited him to help buying the drug for him and that the key witness, B., could confirm this. Sharifyanov confirmed that B. was the one who introduced him to Matveyev right before the test purchase. Nevertheless, B. did not attend the trial, despite the court summons. The same was with many other witnesses for the defence. At the end of a trial, the court restricted itself to the following note: “The Court took measures to summon all witnesses mentioned by the defence. The defence arguments were not confirmed in court, therefore there was no need in summoning additional witnesses.”
Another key witness of prosecution was Fedorchuk, who allegedly sold heroin to Matveyev. Fedorchuk, who uses about 1 gram of heroin a day, was a key witness not only in the case of Matveyev but in another concurrent drug case of Mizoyev who was accused of heroin trafficking based on a test purchase operation conducted Fedorchuk a day after the arrest of Matveyev. During the trial in the case of Mirzoyev, he was acquitted based on the fact that Fedorchuk had agreed to participate in the test purchase operation in exchange of her release from FDCS custody. Fedorchuk confessed in court that she agreed to slender Mirzoyev and participate in a test purchase operation against him because she was suffering withdrawal.
The defense stated all these circumstances in court and in writing. However, the court did not assess them in its judgment. Moreover, all facts the defence presented to the effect of connection between this criminal case and Matveyev’s human rights activities were found to be “unsubstantiated” as, according to the court, these facts “are rebutted by the testimony of Fedorchuk. The court trusts these testimonies as they are also supported by other witness testimonies and protocols of investigative activities.”
The third key witness, Garayeva, was a person who uses drugs who, as an FDCS agent, participated in a test purchase operation against Matveyev on 15 and 16 July 2009. Garayeva said nothing to the effect of her reasons for this cooperation either at the stage of preliminary investigation or at trial. It is probable that Garayev’s “voluntary” cooperation with the FDCS was also driven by her drug dependence.
In court proceedings Matveyev’s defence lawyer pointed out these circumstances; however, the court did not consider them in its judgment.
Additionally, at the court hearings both Matveyev and his defence lawyer pointed to the following circumstances in order dismiss the prosecution’s evidence:
a) None of the drug sachets involved in the case bore identifiable fingerprints. This effectively meant it was not possible to establish that Matveyev actually handled these sachets.
b) The holes that measured 80 mm by 130 mm were found in the pocket of Matveyev’s shorts that were sealed and produced to the court immediately after unsealing. It was impossible to store a heroin sachet that was allegedly confiscated from this very pocket.
c) Forensic reports confirmed that there were no heroin traces in the pocket of Matveyev’s shorts. This can only be accounted for by the fact that there was never any heroin in those pockets. The prosecution could not explain the lack of heroin traces in the shorts pockets.
d) In his scientific assessment report, forensic expert Galliyev concluded that all drugs confiscated under this case on 15, 16 and 17 July 2009 belong to the same batch. The prosecution used this conclusion to infer that drugs that Sharifyanov and Garayeva voluntarily transferred after a test purchase from Matveyev, as well as drugs confiscated from Fedorchuk, belonged to the same batch. However, at the court hearing on18 February 2010 when answering the defence’s question, Galliyev explained that “all drugs in principle belong to the same batch, namely “Afghanistan”. In view of this approach as well as of the data from the UN Office on Drugs and Crime, according to which Afghanistan produces 93% of world’s opium and heroin, one can conclude that everyone involved in illicit drug trafficking in any part of the world is part of an organized criminal group. Galliyev also explained that micro elements of the seized mixture were not examined, while it is this study that allows assigning drugs to the same small batch.
e) A scientific assessment report also indicates that, in all confiscated drugs, pure substance (diacetylmorphine) weight does not exceed 0.65%, while total weight of all controlled substances in this mixture (acetylcodeine, 6-monoacetylcodeine and diacetylmorphine) does not exceed 1.3%. In view of this negligibly low purity of the mixture, the issue of the good condition of gas chromatograph (a device used for quantitative analysis of the objects) is of paramount importance. At the court hearing, Matveyev’s defence lawyer put 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 (page 18 of the court hearing records of 18 February 2010). The court only asked the expert whether the gas chromatograph had been operational and accurate.
f) Psychiatrists and narcologists Tkachenko and Grekova were interrogated as witnesses and testified that, in view of a negligible ratio of active substances, if injected, the confiscated mixture cannot produce any narcotic intoxication and would only have a psychological effect on a person who uses drugs that can alleviate withdrawal symptoms.
g) In the course of the preliminary investigation, the written order for scientific assessment did not set an objective of identifying the foil and polymer materials of the sachets. At trial, the sachets were presented as packed and sealed. The judge dismissed the defence’s request to unpack the sachets for a more detailed examination, although there were no obstacles thereto.
The court did not consider these circumstances. When providing grounds for the judgment, it formally listed materials of the case file, including protocols of investigative activities and testimonies by the witnesses for the prosecution. Defence arguments set out above were not presented in the judgment, but the court did state: “The Court has no grounds not to trust the testimonies by these [prosecution] witnesses, as they are consistent and in agreement with one another.”
The materials of the case file do not contain data that would attest to a preliminary agreement between Matveyev and Fedorchuk as to dealing drugs. As the judgment shows, Matveyev received from Fedorchuk drugs only in return for money he received from Sharifyanov and Garayeva, on whose behalf Matveyev was acting. There was no proof of preliminary agreement between Matveyev and Fedorchuk as to dealing drugs, apart from Fedorchuk’s testimony.
As it follows from the materials of the case file, Matveyev acted as a mediator between a drug dealer and a person who uses drugs, in the interests of the latter. Sharifyanov and Garayeva asked Matveyev to buy drugs for them, and for this purpose they gave Matveyev money, which he used to buy drugs from Fedorchuk on behalf of Sharifyanov and Garayeva.
In its Plenum Decree of 15 June 2006, “On Judicial Practice for Cases of Crimes Related to Narcotic Drugs and Psychotropic, Dangerous and Poisonous Substances”, the Russian Federation Supreme Court provides explanation pursuant to which “actions of a mediator in selling or buying drugs shall be qualified as implication in selling or buying drugs depending on whose interests (the seller’s or the buyer’s) the mediator is acting in.”
Matveyev’s defence lawyer pointed to these circumstances in court hearings, including comments in writing. He argued that, if the court were to believe the circumstances established by prosecutors, Matveyev could only be sentenced for facilitation of purchasing drugs. However, the court did not assess these circumstances and sentenced Matveyev for drug trafficking – a much more serious offence. The upper courts also did not consider these circumstances. As a result, Matveyev was sentenced to six years in a high-security prison.
These facts testify to gross violations of the right to a fair trial as stipulated in Articles 10 and 11 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
As can be inferred from the gravity and obvious nature of these violations, imprisonment of Matveyev does not result from the legitimate court judgment. His imprisonment is arbitrary in nature.
Leaving aside the motives of retaliation for his human rights and anti-corruption activities, the case of Matveyev is rather symptomatic for Russian drug enforcement when police use illegal entrapment, courts ignore evidences of the defence and the less serious offence of drug possession is deliberately categorized as drug trafficking. Human rights organizations have reported similar violations in other drug cases.
As follows from the report of the Russian human rights watchdog organization Committee “For Civil Rights” (CCR), from over 279 complaints against the FDCS received by the CCR from 2007 to 2009
- In 23% of the cases, FDCS staff incited (provoked) the accused to commit an offence (to buy drugs);
- In 20% of the cases, applicants complained about being beaten up at the time of arrest as well as about abuse and torture while in detention;
- In 16% of the cases, testimony of persons dependent on law enforcement officers were used to support charges;
- Fifty one per cent of the cases lacked a video recording of the test drug purchase, and details of the telephone communication of the accused were not requested from the telephone communication provider;
- There was no scientific examination of the defendant’s hands, fingernails, clothes and other requisite tests. Where these tests had been performed, in 44% of the cases they did not support the charges.
The CCR also reported on the adjudication of drug cases investigated by the FDCS:
- The court did not properly assess proof of guilt – 19% of applications to CCR;
- The court did not study inconsistencies between testimonies of prosecution witnesses or between testimonies of prosecution witnesses and the scientific assessment reports – 44% of applications;
- In 44 % of the cases, the court dismissed proof of their innocence without properly assessing it;
- In 44% of the cases, the defendant’s actions were incorrectly categorized; and,
- In 29% of the cases of applications, the court incorrectly qualified mitigating circumstances.
As it follows from the analysis of the judicial statistics published on the website of Judicial Department of the Russian Federation Supreme Court, in 2010, of over 103,000 criminal cases, about 20,000 were cases on qualified drug dealing (large amounts, a group of persons, etc.). The remaining cases – about 85,000 – were cases directly related to drug use, including small drug dealing, in the amount of up to 0.5 grams or up to 6 grams of cannabis. Three-fourths of those 85,000 (or about 63,000) were heard in court under a special procedure (Chapter 40 of the Criminal Procedural Code of the Russian Federation), without a trial after the accused pleaded guilty.
The large-scale repressions on drug-related cases are evident in the recent speech of Viktor Ivanov, Director of the Russian Federation Federal Drug Control Service.
The number of youth in prisons for drug-related crimes doubled as compared to 2005;
On the whole, one in eight prisoners has been convicted under drug-related legislation;
The number of criminals among drug users that have been isolated from community on the court ruling more than doubled over the same period of time;
In metropolitan areas one in three court verdicts are on cases of investigated drug crimes;
In total prevented offences, drug-related crimes rate third after robberies and economic offences.
The European Court of Human Rights (ECHR) has received an increased number of applications on drug-related cases from Russia. According to the official website of the ECHR, 33,500 applications from Russia were to be considered (or 28% of all pending applications) as on 1 January 2010. There are good grounds to believe that many of these applications are related to violations of the rights to liberty and security of person, and the right to a fair trial on drug-related cases.
The widespread violations in drug cases in Russia are a consequence of multiple factors, including poor training of law enforcement, vulnerability of people who use drugs to human rights violations; poor quality of pro bono legal advice and defence counsel on drug cases; social acceptance that people who use drugs only deserve harsh punishment; and lack of effective drug treatment, including opioid substitution treatment.
An additional factor is the lack of independence of judges, which was demonstrated in the Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, based on his mission to the Russian Federation in 2008 (A/HRC/11/41/Add.2, 23 March 2009). In particular Mr. Despouy noticed the following:
The acquittal rate of 1.1 percent leads to the assumption that the principle of presumption of innocence is not consistently enforced in practice.
De facto limitations for the advocate to present evidence on behalf of the accused.
The practice of “telephone justice” or “justice for money” persists in the country. Political interference, which was confirmed by media reports at the time of his visit, has been brought to the attention of the Special Rapporteur. In addition, cases have been reported that in the past judges have sometimes failed to make independent decisions as they feared to have their judgment overturned after they received “advice” from the prosecutor’s office, the respective appeal court or their own court chairperson.
An application for Matveyev’s case was submitted to the European Court of Human Rights in October 2010.
On 27 July 2011, Matveyev appealed to the UN Working Group on Arbitrary Detention, which was called on to urge the Russian government not only to address the human rights violations in the case of Matveyev but also to undertake human rights-based and public health-oriented changes in drug enforcement and judicial practice.
The adverse consequences law enforcement in Russia against people who use drugs are well documented. Currently the judiciary, law enforcement and penitentiary reforms are going on in Russia with a particular aim of liberalization of the criminal laws and providing for alternatives to imprisonment. These reforms will be of little success if they leave unaddressed the profound imbalance in drug policy where drugs are used as a tool for political repression and people who use drugs are the main target of drug enforcement. Drug use, including possession of drugs for personal consumption, shall not be a crime no an administrative offence. Drug demand reduction is a matter of public health, not of criminal justice. Apart from liberalization of the criminal laws there is a strong need that every drug case undergoes comprehensive judicial scrutiny with full respect to the right to fair trial and other fundamental human rights and freedoms.
 Matveyev protiv IVS (Matveyev v. temporary detention facility) http://old.chelnyltd.ru/news/kriminal/posts/Matveyev-protiv-ivs
 V Naberezhnyh Chelnah zaderzhan rukovoditel obshchestvennogo pravozashchitnogo obyedineniya “SMERSh” Denis Matveye (Head of Non-Governmental Human Rights Association SMERSh Denis Matveyev detained in Naberezhnye Chelny) – http://www.mvd.ru/news/show_29529/
 Vanyan v. Russia, No. 53203/99. Judgment of December 15, 2005; Khudobin v. Russia, No. 59696/00.
Judgment of October 26, 2006;
 State Council Presidium Meeting on combating the spread of narcotic drugs among the youth. April 18, 2011.
 Trofimov v. Russia, No. 1111/02. Judgment of December 4, 2008; Vanyan v. Russia, No. 53203/99. Judgment of December 15, 2005; Khudobin v. Russia, No. 59696/00. Judgment of October 26, 2006; Kopylov v. Russia, No. 3933/04, Judgment of July 29, 2010; Fursenko v. Russia, No. 26386/02. Judgment of April 24, 2008; Romanov v. Russia, No. 63993/00, Judgment of October 20, 2005; Vladimir Romanov v. Russia, No. 41461/02, Judgment of July 24, 2008
 E.g., Human Rights Watch, Lessons Not Learned: Human Rights Abuses and HIV/AIDS in the Russian Federation (New York: Human Rights Watch, 2007); T. Rhodes, “Street Policing, Injecting Drug Use and Harm Reduction in a Russian City: A Qualitative Study of Police Perspectives”, Journal of Urban Health 2006; 83(5): 911-925; A. Sarang et al, “Policing Drug Users in Russia: Risk, Fear, and Structural Violence”, Subst Use Misuse 2010; 45(6): 813-864; N. Bobrova et al, “Barriers to accessing drug treatment in Russia: A qualitative study in two cities”, Drug and Alcohol Dependence 2006; 82 (Supp. 1): S57-S63; A. Sarang et al, “Drug injecting and syringe use in the HIV risk environment of Russian penitentiary institutions”, Addiction 2006; 101: 1787-1796; T. Rhodes et al, “Situational factors influencing drug injecting, risk reduction and syringe exchange in Togliatti City, Russian Federation: a qualitative study of micro risk environment”, Soc Sci Med 2003; 57(1): 39-54.
Categories: Voices from Russia | Tags: arbitrary detention, drug policy, ECHR, incarceration, planting drugs, unfair trial | 1 comment »