SEPIL v. TURKEY - 17711/07 - Chamber Judgment [2013] ECHR 1115 (12 November 2013)

In the case of Sepil v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Danutė Jočienė,
          Peer Lorenzen,
          András Sajó,
          Işıl Karakaş,
          Nebojša Vučinić,
          Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 22 October 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 17711/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hasan Sepil (“the applicant”), on 17 April 2007.

2. The applicant was represented by Mr M. Bulan, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant mainly alleged under Article 6 § 1 of the Convention that he had been convicted on the basis of unlawful evidence provided by undercover police officers, who had acted without judicial supervision and had incited him to commit the offence of selling illegal drugs. He further argued that the domestic court had failed to evaluate substantive evidence, namely, records of the telephone conversations he had had prior to his arrest.

4. On 17 March 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1965 and lives in Ҫanakkale.

6. On 26 June 2005 following an undercover police operation, the applicant was arrested on suspicion of selling illegal drugs.

7. According to the police records issued at the Avcılar police station, after having been informed by an unidentified source that the applicant had been trafficking illegal drugs, two officers contacted him by telephone to purchase a fix of heroin for 40 Turkish liras (TRY)[1]. Subsequently, the officers met the applicant at an address they had determined on the telephone, where he tried to sell them a light brown substance, which they suspected to be heroin, wrapped in a piece of paper. In exchange, the officers gave him TRY 40 in banknotes, the serial numbers of which had been noted before. The applicant was arrested immediately afterwards.

8. Following his arrest, the police found four other small packages of the same substance and a syringe on the applicant. The police records noted that the total weight of the substance, including that sold to the police officers, was 2.2 grams. The substance was then sent to the Istanbul Criminal Police Laboratory for chemical examination.

9. On the same day the applicant gave statements to the police in the presence of a lawyer. He maintained that the police officers had searched him while he had been sitting in front of his house and found a syringe and four small packages of heroin, which he had bought from a certain A. for TRY 120 two days before, for his own personal use. The applicant denied that he had sold heroin and argued that he had only had TRY 35 on him at the time of the search.

10. Later that day, the Avcılar Directorate of Security informed the officers at the Avcılar police station that a warrant had been issued for the applicant’s arrest following a previous conviction by the Küçükçekmece Assize Court for using illegal drugs.

11. On 27 June 2005 the Istanbul Criminal Police Laboratory established that the light brown substance, which had a net weight of 2.1 grams, was indeed heroin.

12. On the same day the applicant was questioned by the Küçükçekmece Criminal Magistrates’ Court. He submitted that he had been using drugs for more than twenty years and that he purchased a certain amount of heroin from A. every four days for his own consumption. The investigating judge held that he should be placed in detention pending the outcome of the proceedings.

13. Subsequently, on 11 July 2005 the Bakırköy public prosecutor filed an indictment with the Bakırköy Assize Court, accusing the applicant of possession of and trafficking illegal drugs under Article 188 (3) of the Criminal Code (Law no. 5237).

14. In the meantime, it was established that the applicant had previous convictions for using and selling heroin and for attempted theft.

15. During the course of the proceedings before the Bakırköy Assize Court, at a hearing on 14 September 2005 the applicant maintained that he was merely an addict and that the police records falsely stated that he had accepted money in exchange for drugs.

16. At a subsequent hearing on 14 October 2005 two police officers made statements. One of them submitted that after being informed that the applicant had been selling drugs, another police officer, C.D., had called the applicant on the telephone and arranged a meeting to buy a certain amount of the illegal substance. The applicant’s lawyer argued that the police evidence was unlawful in that the officers had conducted the operation without any judicial supervision and that their acts amounted to inciting the commission of an offence. In that respect, he requested that telephone records be examined in order to establish whether the events had unfolded as stated in the police records.

17. On 6 December 2005 the court heard evidence from police officer C.D., who maintained that he had called the applicant on his mobile telephone and told him that he wished to buy drugs. According to his statement, the applicant had agreed and arranged a meeting. He had then met the applicant down a side road, where they had exchanged the drugs for the banknotes with noted serial numbers.

18. At the hearing on 3 February 2006 the Bakırköy Assize Court heard evidence from witness M.T. at the request of the applicant. M.T. maintained that he knew the applicant to be an addict like himself and that he had never heard of him selling drugs. M.T. added that the applicant would sometimes purchase drugs for him too when he went to buy his dose, which he would pay for afterwards. He stated that one of their friends, Ӧ., was not on good terms with the applicant, but that he did not know whether Ӧ. was the informant.

19. On 1 March 2006 the mobile network operator submitted a list of the telephone numbers the applicant had been in contact with prior to his arrest. Nevertheless, at a hearing on 31 March 2006 the court rejected the request of the applicant’s lawyer to determine to whom those numbers belonged, noting that it would have no effect on the judgment.

20. At the same hearing, the public prosecutor submitted his observations. He maintained that on the basis of witness statements, the applicant’s past convictions and the substance found on him, he must be found guilty as charged as it was established that he had been arrested while trying to sell illegal drugs to police officers. In response, the applicant’s lawyer reiterated that the evidence relied on by the public prosecutor had been obtained unlawfully.

21. On 26 May 2006 the Bakırköy Assize Court found the applicant guilty of trafficking drugs and sentenced him to six years and three months’ imprisonment pursuant to Article 188 (3) and (4) of the Penal Code (Law no. 5237). The court took into account the statements of the police officers, the testimony of M.T. and the evidence resulting from the police operation.

22. On 25 December 2006 the Court of Cassation upheld the judgment of the first-instance court.

23. On 21 April 2010 the applicant was granted conditional release.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

24. The relevant articles of the Code of Criminal Procedure (Law no. 5271), which entered into force on 1 June 2005, read as follows:

Article 139 - Appointment of an undercover investigator

“(1) If there is a strong suspicion that a crime has been committed and there are no other means of collecting evidence, upon the decision of the judge or, where a delay is detrimental, upon the decision of the public prosecutor, public officials may be appointed as undercover investigators.

...

(7) The provisions of this article shall only apply with regard to the below-listed offences:

a) In the Turkish Criminal Code;

1. Manufacturing and trafficking of drugs and stimulants (Article 188); ...”

Article 206 - Submission and refusal of evidence

“...

(2) Evidence submitted to the court shall be refused in the following cases:

a) If the evidence was obtained unlawfully;

b) If the fact supported by that evidence would have no effect on the judgment; ...”

25. A description of the relevant international law may be found in the case of Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR 2008).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

26. The applicant complained that in convicting him the domestic court had taken account of unlawful evidence provided by undercover investigators and failed to examine substantial evidence, in breach of his right to a fair trial under Article 6 § 1 of the Convention, the relevant parts of which provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing by an independent and impartial tribunal ...”

A. Admissibility

27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

28. The Government argued that the police officers who had conducted the operation to arrest the applicant could not be considered to have incited the commission of an offence. In this connection, they argued that the police had been informed beforehand that the applicant had been selling drugs and had been provided with a telephone number through which they could reach him. Moreover, the applicant had already committed an offence before the intervention of the police officers as he had been in possession of a certain amount of drugs, which had been more than what the police officers had asked him to procure over the telephone. The applicant did not have a clean criminal record, had previous convictions for drug-related offences such as carrying, using and selling drugs, and was the subject of an arrest warrant at the time of the police intervention. The Government argued accordingly that the authorities had had sufficient evidence to suspect that the applicant had been trafficking drugs and been predisposed to commit the offence in question, as corroborated by the statements of witness M.T. They maintained that the evidence obtained as a result of the police operation had not been the sole evidence relied on by the domestic court, which had also taken account of witness M.T.’s statements. The Government lastly stated that in the criminal proceedings the court had heard evidence from the police officers involved in the operation and the applicant had had the opportunity to challenge their submissions.

29. The applicant maintained that contrary to Article 139 of the Code of Criminal Procedure the police operation had not been subject to judicial supervision. He argued that he had not been contacted by the police officers prior to his arrest, which could have been proved had the court obtained information about the owners of the telephone numbers listed by the mobile network operator. The applicant stated that even assuming such a conversation had taken place, it would amount to police incitement.

30. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court, for its part, must ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Teixeira de Castro v. Portugal, § 34, 9 June 1998, Reports of Judgments and Decisions 1998-IV). In this context, the Court’s task is not to determine whether certain items of evidence were obtained unlawfully, but rather to examine whether such “unlawfulness” resulted in the infringement of another right protected by the Convention (see Ramanauskas v. Lithuania ([GC], no. 74420/01, § 52, ECHR 2008).

31. More particularly, the Convention does not preclude reliance, at the preliminary investigation stage and where the nature of the offence may warrant it, on sources such as anonymous informants. However, the subsequent use of such sources by the trial court to found a conviction is a different matter and is acceptable only if adequate and sufficient safeguards against abuse are in place, in particular a clear and foreseeable procedure for authorising, implementing and supervising the investigative measures in question (see Khudobin v. Russia, no. 59696/00, § 135, ECHR 2006-XII (extracts), and Ramanauskas, cited above, § 53).

32. Furthermore, while the use of undercover agents may be tolerated provided that it is subject to clear restrictions and safeguards, the public interest cannot justify the use of evidence obtained as a result of police incitement, as to do so would expose the accused to the risk of being definitively deprived of a fair trial from the outset (see Teixeira de Castro, cited above, §§ 35-36 and 39, Khudobin, cited above, § 128, Vanyan v. Russia, no. 53203/99, §§ 46-47, 15 December 2005, and Ramanauskas, cited above, § 54).

33. Police incitement occurs where the officers involved - whether members of the security forces or persons acting on their instructions - do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution (see Teixeira de Castro, cited above, § 38, Ramanauskas, cited above, § 55, and Burak Hun v. Turkey, no. 17570/04, § 42, 15 December 2009).

34. In the present case, the Government argued in their observations that the amount of heroin found on the applicant and M.T.’s statements to the effect that the applicant sometimes provided him with drugs proved that he had been predisposed to commit the offence in question. Nevertheless, even assuming that the call occurred, the Court cannot consider that the officers confined themselves to “investigating criminal activity in an essentially passive manner” as although they could have assumed that the applicant had been inclined to commit an offence having regard to the information provided by the unidentified informant, there was no objective evidence to suggest that he would have sold the heroin he had purchased a few days back without their intervention. It is true that the applicant had a history of drug-related offences and that at the time of the police intervention a warrant had been issued for his arrest in connection with a previous conviction (see, a contrario, Teixeira de Castro, cited above, § 38, and Burak Hun, cited above, § 44). However, the Court observes that those facts were not known to the police officers when they called the applicant on his mobile telephone to ask him if he could procure heroin for them, as they found out about his convictions and the arrest warrant at later stages of the preliminary investigation (see paragraphs 10 and 14 above). With regard to the amount of drugs found on the applicant following his arrest, the Court notes that the applicant accepted from the outset that he was addicted to heroin and would regularly buy a certain amount from a drug dealer. It does not consider it relevant in the instant case that the applicant had already committed an offence prior to the police officer’s telephone call, as using illegal drugs and their possession constitute criminal offences in themselves, because the offence of which he was convicted in the end was drugs trafficking (see paragraph 21 above).

35. The Court further notes that the police officers performed the operation leading to the applicant’s arrest of their own accord, and not on the basis of a decision of a judge or public prosecutor, contrary to Article 139 of the Code of Criminal Procedure, which regulates the appointment of undercover agents (see paragraph 24 above), and without any judicial supervision.

36. In its Khudobin judgment, the Court held that in the absence of a comprehensive system of checks accompanying a police operation, the supervisory role of the trial court thereafter became crucial (see Khudobin, cited above, § 135). It has also held that where an accused asserts that he was incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention, all evidence obtained as a result of police incitement must be excluded. This is especially true where the police operation took place without a sufficient legal framework or adequate safeguards (see Khudobin, cited above, § 133, and Ramanauskas, cited above, § 60).

37. Furthermore, it falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable. In the absence of any such proof, it is the task of the judicial authorities to examine the facts of the case and to take the necessary steps to uncover the truth in order to determine whether there was any incitement. Should they find that there was, they must draw inferences in accordance with the Convention (see Ramanauskas, cited above, § 70).

38. However, in the present case, the Court cannot but notice that despite the applicant’s repeated objections concerning the unlawfulness of the operation and the use of evidence obtained by police incitement, in its judgment convicting the applicant of drug trafficking the domestic court relied on the impugned evidence without dwelling on whether the applicant had been subjected to any incitement. In that respect, the Court observes that although the domestic court obtained a list of the telephone numbers the applicant had been in contact with, it did not go on to establish to whom those numbers belonged, finding that such evidence would have no effect on the outcome of the trial.

39. The Court notes, moreover, that the domestic court did not undertake a thorough examination to establish the reasons for the operation and to determine whether the police officers had acted in compliance with Article 139 of the Code of Criminal Procedure, which pertains to the appointment of undercover agents. In that connection, it observes that the Government have not addressed the issue in their observations either.

40. In conclusion, while being mindful of the importance and the difficulties of the task of investigating offences, the Court considers, having regard to the foregoing, that the actions of police officers had the effect of inciting the applicant to commit the offence of which he was convicted. Furthermore, the domestic court failed to analyse the relevant factual and legal elements which would have helped it to establish whether there was incitement, in particular having regard to the fact that the police intervention did not comply with the legislation, namely, Article 139 of the Code of Criminal Procedure (see Khudobin, cited above, § 133).

41. There has accordingly been a violation of Article 6 § 1 of the Convention as the applicant’s trial was deprived of the fairness required by that provision.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

42. The applicant complained under Article 5 of the Convention about the alleged unlawfulness of his detention pending the outcome of the trial and the domestic court’s use of a stereotyped reasoning for refusing his requests for release. Relying upon Articles 5 and 6 of the Convention, he argued that although he should have been placed in a medical institution with a view to receiving treatment for his addiction, he had been obliged to serve his sentence in prison. Lastly, the applicant maintained under Article 8 of the Convention that his reputation had been damaged and that he had been humiliated as a result of his unlawful arrest and handcuffing by police officers.

43. An examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

44. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

45. The applicant claimed 22,078 euros (EUR) in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.

46. The Government contested these claims, considering the amounts excessive.

47. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have suffered some non-pecuniary damage and therefore, in line with the with the awards made in comparable cases (see Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, § 133, 2 October 2012, and Baltiņš v. Latvia, no. 25282/07, § 72, 8 January 2013), and ruling on an equitable basis, it awards him EUR 4,000 under this head.

48. The Court further considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request (see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).

49. The applicant also claimed EUR 10,075 for costs and expenses incurred before the Court. In support of his claims, he submitted a fee agreement prepared on the basis of the Istanbul Bar Association’s schedule of costs.

50. The Government contested this claim.

51. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads.

52. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning Article 6 § 1 of the Convention with regard to the domestic court’s use of evidence obtained through incitement in the context of an undercover operation admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi
Registrar President

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