In the case of Baltiņš v. Latvia,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David Thór Björgvinsson,
President,
Ineta Ziemele,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
25282/07) against the Republic of Latvia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Latvian national, Mr G. Baltiņš (“the applicant”),
on 12 June 2007.
The applicant, who had been granted legal aid,
was represented by Mrs D. Rone, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented
by their Agent, Mrs I. Reine, who was succeeded by Mrs K. Līce.
The applicant alleged that he had not had a fair
trial as required under Article 6 of the Convention. In particular, he alleged
that as a result of unlawful operational investigative measures he had been
incited by an undercover police agent to commit an offence, namely the
acquisition and sale of narcotic substances, of which he was subsequently
convicted.
On 16 June 2011 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
The applicant was born in 1970 and lives in Rīga.
A. The events leading to the applicant’s arrest
The facts of the case, as submitted by the
parties, may be summarised as follows.
In July 2003 the
applicant was convicted of unauthorised acquisition and storage of narcotic
substances. According to the criminal case file he had acquired and stored for
personal use nine packages of a narcotic substance which contained 0.5108 grams
of methamphetamine. The applicant pleaded guilty. He was given a suspended
prison sentence. Before 2003 he had been convicted four times of theft.
B. The operational investigative measures in respect
of the applicant
At the Government Agent’s request the State police
furnished the following information on 5 October 2011:
“...since 2002
the Anti-Drugs Office [Narkotiku apkarošanas birojs -
ONAP] had information to the effect that [the applicant] had been involved
in the trafficking of narcotic substances. [The applicant] has six previous convictions;
before [the arrest] he was convicted on 18 July 2003 of unauthorised
acquisition, storage and transfer of narcotic substances with intent to sell...
In February 2004 the Anti-Drugs Office received new unofficial
information in connection with the applicant’s drug-trafficking activities. [The
Office] therefore commenced undercover investigation by carrying out a preliminary
inquiry (izziņa), as a result of which on
24 February 2004 the [investigators] opened Case No. 7004204 in order
to verify the operational information (operatīvās
pārbaudes lieta). Information concerning
the applicant was entered in the operational records (operatīvā
uzskaite). Within the framework of the above proceedings [the
investigators] collected information from various sources and carried out
several operational investigative measures, including operational inquiry (izzināšana) phone tapping, which was
authorised by the Supreme Court.
The information acquired during the verification process
confirmed that the applicant was involved in drug trafficking. Accordingly,
operational case (operatīvās izstrādes lieta)
No. 7019304 was opened on 27 October 2004. Various operational
measures were carried out within the [above case], including operational surveillance (operatīvā novērošana), operational interception
of telephone conversations (operatīva sarunu
noklausīšanās) and others.
Three undercover operations conducted in the context of the operational
case were used as evidence of [the applicant’s] guilt, in the criminal
proceedings ...which were instituted on 1 December 2004. [Their] aim
was to create a situation in which the applicant would have an opportunity to
either procure narcotics or refuse to do so, in order to determine how he would
behave.
As a result it was proved that [the applicant] procures
narcotic substances in large quantities.
...”
According to the information provided by the
Government, on 2, 11 and 30 November 2004, at the request of the Anti-Drugs
Office, a specially authorised prosecutor from the Office of the Prosecutor
General (Ģenerālprokuratūras īpaši
pilnvarots prokurors) authorised the carrying-out of investigative
tests (operatīvais eksperiments) in which an undercover police agent, I.,
was supposed to make a “test” purchase of amphetamine from the applicant. The
authorisation was granted in accordance with section 15(3) of the Law on Operational
Activities (Operatīvās darbības likums, hereafter
“the LOA”) (see the relevant domestic law part below).
According to the
statements of the undercover police agent I. and the reports of the official of
the Anti-Drugs Office, the investigative tests were carried out in the
following manner. On 3 November 2004 I. called the applicant and asked to
meet him. The applicant replied that he was busy. Later the applicant called
back and they arranged a meeting. When they met, I. gave the applicant 500 Latvian
lati (LVL) (approximately 700 euros (EUR)) in marked banknotes. According to I.’s
statement, they did not enter into a conversation. The applicant said that he
would call back. Later the same day I. called the applicant, who told him that
everything would be fine. I. again called the applicant, who told him that the
deal had fallen through and that they had to meet at a petrol station. At the petrol station I. called the applicant, who gave him instructions where to find the
“goods”, which consisted of about 100 grams of amphetamine. Their conversations
were recorded.
According to I.’s
statements, he also arranged a meeting with the applicant on
8 November 2004 in a supermarket in order to establish contact and
gain the applicant’s trust. The applicant asked I. if everything had gone well
and I. replied that everyone was satisfied, meaning that he had delivered the drugs
to his partners. Then I. asked if there was any possibility of purchasing
larger quantities of amphetamine. The applicant replied that this was not
possible, but then added that he had 300 grams of amphetamine which he could
sell. I. then asked about those 300 grams of amphetamine and the applicant
replied that he could sell them the same day. I. told him that he could not
make it that day, to which the applicant said “tomorrow then”, and they agreed
to call each other. Later on I. asked the applicant about his occupation, to
which the latter replied that it was his “only bread”, meaning drug
trafficking. These statements could not be heard on the recordings because the
applicant spoke in a low voice.
On
25 November 2004 I. called the applicant and asked him to procure the same
type and amount of drugs as before. They met at a petrol station and I. gave him LVL 500 (approximately EUR 700). The applicant took the money. Later he asked
I. to come to a restaurant where the applicant was waiting for a supplier. On
the same day the applicant met I. in a restaurant and delivered a package of
about 100 grams of amphetamine by putting them under a chair cover.
On 1 December
2004 I. called the applicant and asked to meet him. During the meeting I. offered to purchase 400 grams of the same type of drugs for LVL 2,000 (approximately EUR 2,800).
The applicant told him that he was not sure whether he could supply it. I. said he wanted to pay in two instalments, and gave the applicant half the agreed sum. I. asked about a discount and the applicant lowered the price by LVL 80. The next day
the applicant complained to I. that the money was marked. Afterwards, all
attempts to contact the applicant were unsuccessful.
C. Criminal proceedings against the applicant
On 1 December 2004 the Anti-Drugs
Office initiated criminal proceedings against the applicant on charges of
aggravated unauthorised acquisition and possession of narcotic substances with
intent to sell.
On 6 December 2004 the applicant was
arrested by the police. He refused to give any statements.
On
7 December 2004 the Rīga City Centre District Court authorised a
search of the applicant’s home, where the police officers seized a weighing
scale, some money and a SIM card for a mobile phone. The results of a forensic
chemical examination revealed traces of unauthorised psychotropic substances on
the scale.
On 9 December 2004 a judge of the same
court remanded the applicant in custody. The judge noted that the file did not
contain, inter alia, the authorisation from a specialised prosecutor of the
Office of the Prosecutor General to carry out the undercover operation. The
court extended the applicant’s detention on several occasions.
In response to a
request by the Specialised Prosecutor’s Office for Organised Crime and Other
Offences, the Office of the Prosecutor General stated that the undercover
operations in respect of the applicant had been authorised by the prosecutor on
2, 11 and 30 November 2004. The relevant decisions had not been added
to the criminal case file since they were classified in accordance with the Law
on State Secret.
On 29 December 2004 the criminal case
was sent to the prosecutor’s office and on 4 January 2005 the
applicant was charged with unauthorised acquisition and possession of narcotic
substances with intent to sell. On 6 May 2005 the applicant was
presented with the bill of indictment, which referred to the undercover
operations of 3 and 25 November 2004.
On 23 May 2005 the Rīga Regional
Court decided to commit the applicant for trial.
D. Trial
On 21 October 2005 the Rīga Regional Court
convicted the applicant of aggravated unauthorised acquisition and possession
of narcotic substances with intent to sell and sentenced him to ten years’
imprisonment. Police officer I. did not attend the hearing and his statements
given during the pre-trial proceedings were read out. The court heard evidence
from a police officer, T., who in the course of the undercover operation had
carried out surveillance and tracking of the applicant. When questioned at the
hearing, officer T. stated that during the period in question the applicant had
tried to avoid being tracked and had met with suspicious individuals who might
have been involved in drug trafficking. The Court also questioned V., who
stated that the applicant had brought the marked banknotes to the currency
exchange office at which she worked, to have them checked to see if they were forged.
The court relied on:
the written statements provided by the police officers on the conduct of the investigative
tests carried out on 3 and 25 November and from 1 to
6 December 2004; information about the telephone conversations
between police officer I. and the applicant; an inspection report on the marked
banknotes; an inspection report on the recording of the conversations between
the applicant and officer I.; a forensic chemical report according to which the
items seized at the applicant’s apartment bore traces of amphetamine and
cocaine; a medical examination report according to which no presence of
psychotropic substances had been found in his body but traces of marihuana had
been found on his hands; and a forensic chemical report on the narcotic
substances acquired during the undercover operation. Items seized at the applicant’s
apartment (see paragraph 16 above), together with various data storage devices
(a SIM card, a CD and an audio tape), were admitted as physical evidence in the
criminal proceedings.
On appeal, the applicant requested witness I.’s attendance at the hearing but during the appeal hearing withdrew his
request. On 15 September 2006 the Rīga Regional Court dismissed
the appeal. It dismissed the incitement plea, finding that it was merely a defence
strategy used in an attempt to mitigate the charges.
In an appeal on points of law the applicant
alleged that police officer I. had incited him to commit the offence.
Following a request
from the Senate of the Supreme Court to furnish observations, the Office of the
Prosecutor General on 1 March 2007 submitted the following arguments
in support of the dismissal of the applicant’s incitement plea:
“...Section 15(3) of the LOA authorises ... the carrying-out of
undercover operations the aim of which is to determine the behaviour of a
person ... in a situation which is liable to result in (izraisa)
criminal or otherwise unlawful activities. Section 22 of the LOA provides
that the precondition for instigating operational proceedings (izstrāde) is ... information ... which provides
sufficient basis to suspect [specific] individuals of committing or preparing
to commit an offence. Based on the above provisions [and] after having received
authorisation from the prosecutor, the investigators are authorised to create a
situation which is conducive to (veicina) the disclosure of [an
individual’s] criminal intent, but in which [the individual] remains free to
choose whether or not to carry out the criminal activities. ... The applicant
did not become involved in the trafficking of narcotic substances as a result
of the undercover operation; on the contrary, the criminal activities commenced
by the applicant [had been] interrupted.”
The Senate of the
Supreme Court dismissed the appeal. It noted that the pre-trial investigation
in the criminal case had been conducted before the Law of Criminal Procedure entered
into force and that the former Code of Criminal Procedure did not regulate
special investigative activities. With regard to the incitement plea, the
Senate found as follows:
“... It is clear from the materials of the case that on 2, 11
and 30 November 2004 a prosecutor from the Office of the Prosecutor
General approved the decision of the Anti-Drugs Office to conduct undercover
operations in relation to [the applicant] in order to record [the latter’s]
behaviour when [the investigator] asked [him] to supply him with narcotic
substances against payment.
... there is no evidence in support of the allegations that the
police officer incited the applicant to commit a criminal offence; neither did [the
officer] apply methods aimed at overcoming the applicant’s doubts or his resistance
to committing a crime.
The Court of Cassation concludes that, in accordance with the
Law on Operational Activities, the aim of an investigative test is to record a
person’s behaviour in a situation in which he or she is liable to commit
criminal or other unlawful acts.
It was established that the police officers had sufficient
information to suspect [the applicant] of unlawful activities involving narcotic
substances...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant parts of the Law on Operational
Activities, as in force at the material time until 30 September 2005
Section 2 defines the aims of undercover
operations. These are, inter alia, to prevent, deter and detect criminal offences and to identify criminal
offenders and sources of evidence.
28. Section
4 sets out the principles governing undercover operations, such as the
prohibition on inciting persons to [commit] a criminal offence (paragraph 2)
and the right to commence undercover operations only as a last resort if it is
not possible to attain the aims by deploying other measures (paragraph 4).
Section 19 refers to section 4 and provides that undercover activities are to
be instigated only in accordance with the provisions of the latter.
29. Section
5 provides that if a person considers that in the course of undercover
operations his or her rights or freedoms have been infringed, he or she has a
right to complain to the competent prosecutor or to lodge a claim with a court.
. Section 6 sets out an
exhaustive list of operational measures, including an investigative test (paragraph
1, subparagraph 7).
. Section 8 provides that the
organisation and methodology of operational measures are considered to be a
State secret.
32. Under
section 15, the purpose of an investigative test is to create specific
circumstances (situations) in order to identify persons or items of interest,
or to determine the reaction of persons under investigation and to determine
the motivation (subjective aspect) for their actions.
An investigative test can
also be carried out in order to verify the feasibility and objectives of a
person’s actions; to track a person’s possible actions and verify the existence
or movement of objects; or to create a favourable situation for the investigating
authority to carry out its investigative tasks.
An investigative test, the
purpose of which is to record the behaviour of a person ... in a situation liable
to result in a criminal or other illegal act (noziedzīgu vai citādu prettiesisku
rīcību izraisošā situācijā) shall be performed only with the approval of a
prosecutor.
. Section 22 provides:
“Paragraph I
If the authority carrying
out investigative operations has at its disposal information in respect of specific
persons (including information obtained as a result of an operational
verification exercise) which provides sufficient basis to suspect such persons
of planning or committing a criminal offence or threatening interests of
importance to the State, or such persons are being sought in connection with a
criminal offence already committed, operational proceedings shall be initiated
in respect of the persons concerned.
Paragraph II
The operational proceedings
shall be initiated by a decision which shall be approved by the head or deputy
head of the body performing the investigative operations. A prosecutor shall be
informed thereof.
Paragraph III
An operational case shall
be opened in respect of the operational proceedings, and persons with respect
to whom the investigation is being conducted shall be registered in the operational
records.
Paragraph IV
Any of the operational
measures set out in section 6, and the methods of conducting such measures
referred to in section 7 of this Law, may be used in the investigative
procedure.
Paragraph V
The period of the
operational proceedings shall be six months, which may be extended for a
further six months with the approval of the head or deputy head of the body
performing the investigative operations. A further extension of the term may be
obtained only with the approval of the Prosecutor General or a prosecutor
specially authorised by the Prosecutor General, but shall not last longer than
the limitation period for the crime under investigation.”
. Section 35 provides:
“(1) The Prosecutor General
and prosecutors specially authorised by the Prosecutor General shall be
responsible for monitoring the conformity of undercover operations with the law.
For the purpose of monitoring they shall be entitled to consult such documents,
materials and information, at any stage of the investigative operations, as are
available to the investigating body. Covert information and its sources shall
be revealed only to the Prosecutor General, or to the prosecutors specially
authorised by the Prosecutor General with the permission of the head of the investigating
body.
(2) In order to take a
decision with respect to undercover operations provided for by [the LOA], the carrying-out
of which requires approval by a judge, the judge shall be entitled to consult
those documents, materials and information available to the investigating body
on which the necessity for the specific undercover measure is based. The covert
information and the sources thereof shall be revealed to the judge only with
the permission of the head of the investigating body.”
B. Relevant parts
of the Law of Criminal Procedure, in force as from 1 October 2005
With respect to
the admissibility of evidence, section 130 provides that it is admissible to
use factual information acquired during criminal proceedings if such
information was obtained and authorised in accordance with the procedures
specified in the Law of Criminal Procedure. Factual information that has been
acquired in the following manner shall be deemed inadmissible and
non-probative:
(i) through violence, threats, blackmail, fraud, or duress;
(ii) through a procedural action performed by a person who
lacked authorisation, under this Law, to perform that action;
(iii) by violating the provisions of this Law prohibiting the
use of evidence;
(iv) by violating the fundamental principles of criminal
proceedings.
Part 11 of the Law of Criminal Procedure
provides an exhaustive list of special investigative activities (speciālās izmeklēšanas darbības), which
include phone tapping, a special investigative test and others, and governs the
manner in which they are carried out.
Under section 225, investigative tests are
designed to create a situation or circumstances characteristic of the daily
activities of a person which are conducive to the disclosure of criminal
intent, and to record the person’s actions in such circumstances.
The investigative tests are carried out on the
basis of a decision by an investigating judge if there are grounds for
believing that: a person has previously committed a criminal offence and is
preparing to engage in, or has commenced, the same criminal activities; an
actual criminal offence may be interrupted within the framework of criminal
proceedings under way; information regarding the facts to be proved may be
obtained as a result of the operation, or the acquisition of the necessary
information is impossible or will be hindered without the operation.
Under section 225(3) it is prohibited to incite a
person to commit a particular act, to influence a person by violence, threats,
or blackmail or to take advantage of a person’s helplessness.
C. Relevant parts of the judgment of 11 May 2011
adopted by the Constitutional Court in Case No. 2010-55-0106
When called upon to
assess whether the supervisory mechanisms enshrined in section 35(1) of
the LOA complied with Article 92 of the Constitution guaranteeing the right to
a fair trial, the Constitutional Court, in Case No. 2010-55-0106, observed that
the effectiveness of the above-mentioned supervisory mechanisms was to be
assessed in conjunction with the right of the individuals concerned to protect
their infringed rights. The court recognised that under section 5 of the LOA individuals
could apply to the prosecutor’s office or the courts if they considered that in
the course of undercover operations the authorities had infringed their rights.
The Constitutional Court concluded that the monitoring of the lawfulness of
undercover operations by the prosecutor’s office was supplemented by a review
by the courts during or after the operations, thereby ensuring independent supervision
of undercover operations. In the event of an infringement, the court or the prosecutor’s
office was obliged to restore the infringed rights and compensate for or remedy
the damage caused.
The Constitutional Court also noted that the rights of individuals were effectively protected by
means of the verification of the information obtained during undercover
operations on the basis of the procedures enshrined in the Law of Criminal
Procedure and the LOA. It noted in this regard:
“20.3 ... Pursuant to section 24
paragraph 4 of the [LOA], in
the course of undercover operations, the body responsible for the relevant
stage of the proceedings (procesa virzītājs) must be informed
of all the information obtained in the course of undercover operations. In verifying
the admissibility of the evidence, the court assesses whether the information
obtained as the result of undercover operations is in conformity with section 9
of the Criminal Procedure Act and the [LOA]. In
verifying whether the particular activities comply with the norms regulating
criminal procedure, [the information obtained as a result of undercover
operations] may be used as fully-fledged evidence [in criminal proceedings]
(see Strada-Rozenberga K. Pierādīšanas teorija
kriminālprocesā. Vispārīgā daļa. Rīga: Biznesa augstskola „Turība”, 2002, pp. 187). Consequently, the body
responsible for that stage of the proceedings and the court assess the
admissibility of the information obtained as the result of undercover operations.
Effective protection of the rights of individuals is ensured by the Prosecutor
General and by the specialised prosecutors who supervise the lawfulness of
undercover operations, and by the court which reviews the operations ex post
facto.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that he had not had a
fair trial. He complained in particular that as a result of unlawful operational
investigative measures he had been incited by an undercover police agent to
commit an offence, namely the acquisition and sale of narcotic substances, of
which he was subsequently convicted.
The complaints are covered by Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
The Government submitted that the applicant had failed
to exhaust domestic remedies in respect of his complaint that the investigative
test had been unlawful. They contended that the test had been duly authorised
in a timely manner by a competent prosecutor of the Office of the Prosecutor
General. In this regard the Government noted that the applicant had never
complained about the legality of the operational measures to the prosecutor’s
office. They referred to the judgment of the Constitutional Court of
11 May 2011 in Case No. 2010-55-0106 which, according to the
Government, confirmed that the public prosecutor’s office was capable of
exercising effective and independent supervision of special investigative
activities and provided effective safeguards in cases of alleged violation of
procedural and constitutional rights (see paragraph 40 above). The Government
emphasised that the domestic courts could not examine the procedural and
technical aspects of the investigative test since these issues fell outside their
competence, but that nevertheless they had conducted a prima facie
review of all the evidence in order to establish whether they had been
technically admissible in terms of the legislation in force.
The applicant contended that the investigative
test at issue had not been authorised in accordance with the domestic law and had
been unlawful. He further argued that an appeal to the prosecutor’s office
would not constitute an effective remedy since the response would not lead to
any real changes in the criminal proceedings. According to the applicant, he
had exhausted remedies by raising an incitement plea before the domestic
courts.
The Court reiterates that the Government have
the burden of proving that the domestic legal system provided for a remedy that
was effective and available not only in theory but also in practice, that is,
that it was accessible, capable of providing redress in respect of the
applicant’s complaints and offered a reasonable prospect of success (see,
amongst many other authorities, Ommer v. Germany (no. 2), no. 26073/03,
§ 55, 13 November 2008).
The Court observes
that the Government did not specify exactly which effective and sufficient
remedies could be obtained in practice by means of an appeal to the prosecutor’s
office. It also observes that in the context of this particular type of
investigation court supervision would be more appropriate, even though other
supervisory mechanisms are not excluded (see Milinienė v. Lithuania, no. 74355/01, § 39, 24 June 2008).
The Government did not dispute on the other hand that under the
Law of Criminal Procedure the domestic courts were empowered to rule on the
admissibility of evidence obtained as a result of undercover activities. The
Court also notes that the domestic courts’ role in this particular type of
criminal case was recognised by the judgment of the Constitutional Court
invoked by the Government. Without commenting on the Constitutional Court’s
findings as to whether the domestic courts’ ex post facto review (pēckontrole)
of the authorisation to launch certain undercover activities provides effective
safeguards against abuse of the rights protected under the Convention, in the instant
case the Court would refer to the Constitutional Court’s conclusion concerning the
domestic courts’ role in the advanced stages of criminal proceedings when, by assessing
the admissibility of evidence, they review whether the evidence brought before
them has been obtained in conformity with, inter alia, the provisions of
the LOA (see paragraphs 40-41 above). Observing that, under section 4 of the LOA,
incitement to commit a crime is prohibited the Court considers that it was
reasonable to expect that the applicant would ask the domestic courts to
address his concerns about the evidence allegedly obtained by means of unlawful
undercover activities such as incitement.
It should be observed that the applicant’s main complaint concerned the fairness of the
proceedings as a whole, including his right to defend his case by, inter
alia, raising an effective incitement plea and challenging the
admissibility of evidence. The applicant raised complaints about the
alleged police incitement before all three levels of court (see paragraph 26
above). None of the courts indicated that there were any statutory restrictions
which prevented them from examining the complaint, or stated that the applicant
should have applied to a prosecutor (see Leas v. Estonia, no. 59577/08, § 70, 6 March 2012).
In the light of the above considerations the
Court finds that the applicant availed himself of a remedy that was apparently
effective and sufficient, and therefore is not required to exhaust other
alternative remedies which were no more likely to be successful (see, among
other authorities, Nada v. Switzerland [GC], no. 10593/08, § 142, 12 September 2012).
The Court further notes that the complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention
nor is it inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The
parties’ submissions
(a) The Government
The Government
dismissed the applicant’s argument that the police officers had overstepped the
limits of undercover investigation. They noted that the applicant had a
previous conviction for drug offences, a fact which distinguished the
circumstances of the present case from those in Ramanauskas v. Lithuania ([GC],
no. 74420/01, ECHR 2008) and Malininas v. Lithuania (no. 10071/04, 1
July 2008). The Government emphasised that only a few months after the
applicant’s previous conviction the law-enforcement authorities had received
unofficial information indicating that he had resumed illegal drug-related
activities, and the investigators had launched an operational verification
exercise (operatīvā pārbaude) in the course of which,
over a period of nine months and in accordance with the provisions of the LOA,
they gathered information from various sources such as police informants and
telephone tapping. Therefore, according to the Government, the investigators
had verified the unofficial information and had had good reasons to suspect the
applicant of committing or being prepared to commit a drug-related offence when
they sought authorisation to carry out the investigative test. The Government further
referred to the applicant’s behaviour during the investigative test and
contended that he himself had been eager to increase the quantity of drugs.
According to the Government, the domestic courts
had duly examined the incitement plea. In this regard they referred to the
reasoning of the Senate of the Supreme Court (see paragraph 26 above), adding
that the evidence obtained by means of the special investigative techniques had
not been the sole basis for the applicant’s conviction. They noted that during
the appellate proceedings the applicant had explicitly waived his right to
question the undercover police agent I.
Accordingly, the Government invited the Court to
dismiss the complaint as manifestly ill-founded or otherwise declare that there
had been no violation of Article 6 of the Convention.
(b) The applicant
The applicant argued that prior to launching the
investigative test the investigators had possessed only unofficial information
obtained from police informants, and that by repeatedly requesting the
applicant to sell narcotics, sending text messages and bringing about a
supposedly accidental meeting the undercover police agent had not acted in a
passive manner but rather had incited the applicant to commit the offence.
He also argued that his conviction had been
based solely on the evidence obtained as a result of the undercover operations
and the pre-trial testimonies of the undercover police agent I., who had not
been questioned during the trial.
2. The
Court’s assessment
(a) General principles
The Court reiterates that it is for the national
courts to assess the evidence brought before them, whereas the Court must
ascertain whether the proceedings as a whole, including the way in which
evidence was taken, were fair (see Ramanauskas cited above, § 52).
In this regard 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 (ibid.).
The requirement of the fairness of a trial embodied in Article 6 would be
compromised by the use of evidence obtained as a result of police incitement (see
Teixeira de Castro v. Portugal, 9 June 1998, § 36, Reports of
Judgments and Decisions 1998-IV).
The Court has previously examined complaints
raising issues of police incitement under the substantive and procedural limbs
of Article 6 (see, for a detailed description of the
applicable principles deriving from the Court’s case-law, Bannikova
v. Russia, no. 18757/06,
§§ 33-65, 4 November 2010). Under the substantive limb,
the Court has assessed whether the investigative activity of the police
officers went beyond that of undercover agents (see Teixeira de Castro
cited above, § 38, and Ramanauskas cited above, § 55), in other words,
whether the offence would have been committed without the authorities’
intervention. In this regard the Court has in previous cases examined, inter
alia, whether the investigating authorities had good reasons to suspect the
applicant of prior involvement in particular unlawful activities (see Teixeira
de Castro cited above, § 38), at what stage of the offence the undercover
agents carried out the undercover operation (see Vlachos v. Greece, no. 20643/06, § 26, 18 September 2008), and whether the conduct of the
undercover agent was essentially passive (see Malininas cited above,
§ 37, and Ramanauskas cited above, § 67).
Under the procedural limb, the Court has assessed
the procedure whereby a plea of incitement was determined in the particular
case by the domestic courts, to ensure that the rights of the defence were
adequately protected (see, among many other authorities, Edwards and Lewis
v. the United Kingdom, nos. 39647/98 and 40461/98, § 51, 22 July
2003). The Court has also noted that where the
reliability of evidence is in dispute the existence of fair procedures to
examine the admissibility of the evidence takes on an even greater importance
(see Bykov v. Russia [GC], no. 4378/02, § 95, 10 March
2009). In this regard the Court has emphasised
that it falls to the prosecution to prove that there was no incitement,
provided that the defendant’s allegations are not wholly improbable. If an
arguable claim in this respect has been raised, the Court must ascertain
whether the applicant was able to argue the incitement plea effectively and
whether the domestic courts took the necessary steps to establish that no
police incitement had taken place (see Khudobin v. Russia, no. 59696/00,
§ 135-137, ECHR 2006-XII (extracts)). For the national courts this
entails establishing, inter alia, the reasons why the operation was
mounted, the extent of the police’s involvement in the offence and the nature
of the activities to which the applicant was subjected (see Ramanauskas cited
above, § 71).
(b) Application of the above principles to the
present case
In the light of the above principles the Court
shall first assess the substance of the applicant’s complaint that he had been the
victim of police incitement. In this regard the Government emphasised the
applicant’s predisposition to commit drug offences (see paragraph 50 above).
The Court notes at the outset that, although the applicant had previously been
convicted of storing drugs, nothing in the case file suggests that he had been
convicted of drug trafficking (see paragraph 7 above). The Court also notes
that under section 4(4) of the LOA, undercover operations were to be carried
out only after other means of attaining the aims laid down in the LOA had been
exhausted. As is clear from the Government’s observations, the investigators
had unofficial information about the applicant’s alleged illegal activities and
they had taken steps to verify it (see paragraph 50 above). In contrast to, for
instance Milinienė (cited above, §§ 37-38), where the police
deployed the contested undercover activities in response to information which
was later scrutinised by the domestic court (see also Vanyan v. Russia, no. 53203/99, § 49, 15 December 2005), in the present case no objective
evidence showing the reasons for police officer I.’s attempts to establish
contact with the applicant was ever subjected to the domestic courts’ scrutiny
(see paragraphs 10-13, above). Moreover, the information in the criminal file
does not make it clear whether the investigators “joined in” an already ongoing
offence (contrast, for instance, Bannikova cited above, § 69). Lastly,
as in Malininas (cited above, § 37), with each offer the undercover
agent asked the applicant to procure larger quantities of drugs and offered him
a substantial monetary inducement; this raises doubts as to whether the conduct
of the undercover agent remained purely passive.
In view of the nature of the police activities, the
applicant’s allegations of incitement brought before the domestic courts were not
improbable. The courts should therefore have proceeded to determine whether the
applicant had been the victim of incitement.
At the time the investigative test was carried
out, undercover activities were regulated exclusively by the LOA. (As from
1 October 2005 the existing framework was supplemented by the
regulation on special investigation activities introduced by the Law of Criminal
Procedure, - see Law part above).
The Court observes that, as characterised by the
domestic law (see paragraph 32 above)
and explained by the Supreme Court (see paragraph 26 above), the element of
incitement was inherent in the very nature of investigative tests, and it appears
that there was only a slight difference between incitement and legitimate
undercover techniques. In such circumstances the role of the courts’ scrutiny
of whether the evidence was obtained without the use of incitement becomes even
more important, in order to eradicate any reasonable doubts in that regard.
Moreover, it becomes particularly important where no assessment has been made
by the courts prior to the launching of an investigative test, as in the case
of investigative tests regulated by the LOA which, in contrast to similar measures
regulated by the Law of Criminal Procedure, are not subject to prior
authorisation by the courts.
In the instant case the decision by which the
Office of the Prosecutor General authorised the carrying-out of the investigative
test in relation to the applicant was classified and was not added to the
criminal file (see paragraph 18 above). The criminal file contained investigative
reports which referred to the date of the above authorisation, but not to the
substance of it. When called upon to examine the incitement plea, the court of
first instance, without further assessment, concluded that all the evidence
brought before it was admissible (see paragraphs 21-22 above), while the
appellate court found that the applicant had raised the plea with the aim of evading
criminal responsibility. Disregarding the lower courts’ failure to address the
incitement complaint on the merits, the Supreme Court concluded that it had
already been established that prior to carrying out the undercover activities
the investigators had had sufficient information to suspect the applicant of
drug trafficking (see paragraph 26 above). The Court observes that there is no
information whether the Senate reached the above conclusion by examining the
authorisation and the reasons contained therein, or by relying on any other
objective information which might have justified the launching of the investigative
test.
As regards the domestic courts’ access to the
classified operational materials, the Court points out that the domestic law
recognised the role of the domestic courts in the assessment of undercover
operations (see paragraph 46, above regarding the exhaustion of domestic
remedies). In addition, it can be understood from the wording of section 24 of
the LOA (see paragraph 41 above) that if necessary the court, as the entity in
charge of the criminal proceedings, may obtain access to the classified
information. In any event, there is no indication that the domestic courts
attempted to obtain such access to the classified materials. Where it falls to the prosecution to prove that there was no
incitement (see Ramanauskas, cited above, § 70), the domestic
courts’ powers to guarantee a fair trial would be undermined if, in assessing
an incitement plea, they reached their conclusions by relying on unverified
information which was in the exclusive possession of the prosecution.
The Court does not contest the Government’s
arguments that the applicant’s conviction was based on various items of
evidence. However, it observes that such evidence resulted from the impugned
operation carried out by the investigating authority. Besides, the crux of the
matter before the Court concerns fair-trial guarantees in circumstances where
the applicant had raised an arguable claim of incitement.
The foregoing considerations are sufficient for
the Court to conclude that the domestic courts did not properly address the
incitement plea raised by the applicant.
There has accordingly been a violation of Article 6 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant alleged violations under various
other Articles of the Convention.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that the remainder of the application does not
disclose any appearance of a violation of any of the Articles of the Convention
relied on. It follows that these complaints are inadmissible under
Article 35 § 3 (a) as manifestly ill-founded and must be rejected
pursuant to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The applicant claimed 42,686 euros (EUR) in
compensation for pecuniary damage and EUR 300,000 in respect of non-pecuniary
damage.
The Government disagreed with the claims.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim.
Having regard to the nature of the violation
found in the present case and deciding on an equitable basis, the Court awards
the applicant EUR 5,000 in compensation for non-pecuniary damage.
. The Court also considers that the
most appropriate form of redress would be the retrial of the applicant in
accordance with the requirements of Article 6 § 1 of the Convention,
should the applicant so request (see, Salduz
v. Turkey [GC], no. 36391/02, § 72, ECHR 2008).
B. Costs and expenses
The applicant also claimed EUR 1,364.53 for the
costs and expenses incurred before the domestic courts and for those incurred
before the Court.
The Government raised doubts as to the
credibility of the claim, since the applicant had failed to submit any evidence
that the aforementioned costs had actually been incurred.
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 were 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, as well as the fact that the applicant
received legal aid from the Court, the latter rejects the claim for costs and
expenses under all heads.
C. Default interest
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 under Article 6 of
the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 of the Convention;
3. Holds:
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention EUR 5,000
(five thousand euros) plus any tax that may be chargeable, in respect of
non-pecuniary damage at the rate applicable at the date of settlement, to be
converted into the currency of the respondent State;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount 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 8 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı David
Thór Björgvinsson
Deputy Registrar President
