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FOURTH SECTION

 

 

 

 

CASE OF URSU v. ROMANIA

 

(Application no. 44497/09)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

18 December 2018

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Ursu v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 27 November 2018,

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

PROCEDURE

1. The case originated in an application (no. 44497/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Romanian national, Mr Răzvan Bogdan Ursu ("the applicant"), on 10 August 2009.

2. The applicant was represented by Mr A. Hahui, a lawyer practising in Constanţa. The Romanian Government ("the Government") were represented by their Agent, Ms C. Brumar from the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that the criminal proceedings against him had been unfair because he had been convicted of an offence committed under police incitement. He relied on Article 6 §§ 1 and 3 (d) of the Convention.

4. On 20 November 2013 the complaints under Article 6 §§ 1 and 3 (d) of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1983 and lives in Bucharest.

6 . According to a police report drawn up on 21 June 2005, the police division responsible for fighting organised crime and drug trafficking ("the police") received information from an undisclosed source that an individual called "Ursu-Degweed" was a member of a network of dealers that was trafficking drugs in Constanţa.

7. The police initiated an investigation of their own motion. On 21 June 2005 the prosecutor authorised the use of an undercover police agent, who was to be helped by a police informer, D., to follow a lead regarding the applicant's alleged criminal activities. At the time of the events, the applicant was a student; D. was an acquaintance of the applicant, studying at the same university.

8 . D. called the applicant and asked him to provide her with some drugs. She informed him that a common friend, L., could help him to find a dealer, set the price for the drugs and sent the money by mail (postal order) on 23 June 2005.

9. On 25 June 2005 the applicant called D. and set up a meeting at the Constanţa railway station for the same day. The applicant was accompanied by three friends. At about 11.45 p.m., while he was waiting for D. at the railway station, police officers from Constanţa Police, acting in league with the undercover agent and D., approached him. They searched the applicant and found eighteen ecstasy tablets and 0.46 grams of cannabis resin in his possession.

10. In his first statement to the police, given on 26 June 2005, the applicant disclosed that the dealer who had sold him the drugs was called B. and helped the police to set up an operation to catch him in the act of committing a crime.

11. The applicant also stated that D. had called and had asked him to buy twenty ecstasy tablets for her. She had sent the money for the drugs by post and had informed him that a common friend, L., could help him to find a dealer. L. had given him the number of a dealer, B., who had sold him seventeen tablets. He had received two tablets as a gift; he had kept one for himself and had given the other one in exchange for the cannabis resin, found in his possession at the search. He intended to spend his holidays in Constanţa with his friends at D.'s invitation. D. had also promised to offer him accommodation.

12. The applicant maintained his allegations in a statement given in the presence of two lawyers of his choice on 19 July 2005. He added that he had accepted to provide D. with the ecstasy tablets in the hope of having an intimate relationship with her during his stay in Constanţa.

13. On 25 July 2005 the prosecutor's office committed the applicant for trial on charges of drug trafficking, in violation of Law no. 143/2000 on the fight against drug trafficking and illegal drug use (hereinafter "Law no. 143" - see paragraph 22 below).

14 . Several hearings were held before the Constanţa County Court. The applicant denied his involvement in drug trafficking and claimed that he had been entrapped by the police. His lawyers insisted on the importance of hearing evidence from D.

15 . On 5 June 2007 the Constanţa County Court convicted the applicant of drug trafficking and sentenced him to one and a half years' imprisonment suspended on probation. The court dismissed his allegations that he had been entrapped. It confined itself in noting that the activity of the informer, D., had been lawful, without referring to the question whether she had been authorised to act as an undercover agent. The relevant part of its reasoning read as follows:

"The applicant's argument that the informer, D., had incited him to commit the offence could not be retained. The court notes the applicant's recruitment activity in bars in Constanţa, the undercover informer being a simple client among other clients. The activity performed by the undercover informer was in line with Law no. 143/2000."

16 . The Constanţa County Court did not provide any reasons justifying the fact that, in spite of the applicant's insistence, D. had not been heard. In convicting the applicant, it relied on his own statements, corroborated by the statements made by the friends who had accompanied him on his trip to Constanţa on 25 June 2005, as well as on reports produced by the undercover agent and the police following the police operation organised on 25 June 2005 when the applicant had been caught in the act of committing a crime.

17 . The applicant appealed against the judgment of 5 June 2007. His lawyers reiterated that he had been entrapped by the police and that D. should be heard by the court. They also claimed that D. had not been authorised to be part of the undercover operation.

18. On 22 October 2008 the Constanţa Court of Appeal noted that D. had never given evidence as a witness before the investigating authorities and that her name had only been mentioned in the reports drafted by them. Accordingly, her previous statements could not be read in open court pursuant to Article 327 § 3 of the CCP (see paragraph 23 below).

19 . On 24 October 2008 the court dismissed the applicant's appeal and upheld the County Court's findings. Without providing any additional reasons, the court simply reiterated that the evidence obtained by using an undercover agent was in accordance with Law no. 143. It did not refer at all to the applicant's argument that D. had not been heard.

20 . The applicant lodged an appeal on points of law, reiterating his complaints. He claimed that he had been unduly incited by D. to commit the offence of which he had been found guilty and that throughout the proceedings he had not had an opportunity to have her questioned.

21. In a final decision of 4 March 2009 the High Court of Cassation and Justice dismissed the applicant's appeal as ill-founded. It upheld the reasoning of the two lower courts.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

22 . The relevant provisions of the former Criminal Procedure Code ("CCP") and the relevant provisions of Law no. 143/2000 on combating drug trafficking are described in Constantin and Stoian v. Romania (nos. 23782/06and 46629/06, §§ 33 and 34, 29 September 2009).

23 . Article 327 § 3 of the CCP provided that when it was impossible for a court to hear a witness it should read out his or her testimony given at the pre-trial stage of the proceedings and take it into consideration when examining the case.

24. Relevant Council of Europe and other international conventions concerning special investigation techniques are described in Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR 2008).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

25. The applicant complained that he had not received a fair trial in the criminal proceedings against him, in particular as he had been convicted of drug offences which he had been incited to commit, and essentially on the basis of evidence obtained by that entrapment operation. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which, in so far as relevant, reads as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights ...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ..."

A. Admissibility

26. The Court notes that these complaints are 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

1. The parties' submissions

(a) The applicant

27 . The applicant submitted that he had not been involved in drug trafficking and that the only reason for buying the eighteen ecstasy tablets was the insistence of the police informer, D., who had not only sent the money to buy them but had also indicated the person from whom he might buy them.

28. The applicant also complained that D. had never been heard by any of the domestic authorities, despite the specific requests of his lawyers.

(b) The Government

29 . The Government denied that there had been police entrapment in the case. They explained that the police had identified an organised crime group, and that the role of the undercover agent and the police informer, D., was to confirm those findings. D. had remained passive and had not exerted any pressure on the applicant.

30. The Government further argued that the domestic courts had thoroughly examined the applicant's allegation of entrapment and that his conviction had not been based to a decisive extent on evidence given by D. The courts had relied primarily on the admissions of the applicant himself, as well as on the reports drafted by the police. Moreover, the applicant had failed to indicate to the courts which aspects he had considered required elucidation by hearing D.

2. The Court's assessment

(a) General principles

31. In the specific context of investigative techniques used to combat drug trafficking and corruption, the Court's long-standing view has been that, 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, among other authorities, Teixeira de Castro v. Portugal , 9 June 1998, §§ 35-36 and 39, Reports of Judgments and Decisions 1998-IV, and Ramanauskas v. Lithuania [GC], no. 74420/01, § 54, ECHR 2008).

32. In its extensive case-law on the subject, the Court has developed the concept of entrapment in breach of Article 6 § 1 of the Convention, as distinguished from the use of legitimate undercover techniques in criminal investigations. It has held that while the use of special investigative methods - in particular, undercover techniques - cannot in itself infringe the right to a fair trial, the risk of police incitement entailed by such techniques means that their use must be kept within clear limits (see Ramanauskas , cited above, § 51).

33. The Court's examination of complaints of entrapment has developed on the basis of two tests: the substantive and the procedural test of incitement. The relevant criteria determining the Court's examination in this context are set out in the cases of Bannikova v. Russia (no. 18757/06, §§ 37-�65, 4 November 2010) and Matanović v. Croatia (no. 2742/12, §§ 123-135, 4 April 2017). They were recently summarised in the cases of Ramanauskas v. Lithuania (No. 2) (no. 55146/14, §§ 56-62, 20 February 2018) and Virgil Dan Vasile v. Romania (no. 35517/11, §§ 40-50, 15 May 2018).

34 . The methodology of the Court's assessment is as follows (see, inter alia , Ramanauskas (No. 2) , cited above, § 62):

(a) A preliminary consideration in its assessment of a complaint of incitement relates to the existence of an arguable complaint that an applicant was subjected to incitement by the State authorities. In this connection, in order to proceed with further assessment, the Court must satisfy itself that the situation under examination falls prima facie within the category of "entrapment cases". If the Court is satisfied that the applicant's complaint falls to be examined within the category of "entrapment cases", it will proceed, as a first step, with the assessment under the substantive test of incitement.

(b) Where, under the substantive test of incitement, on the basis of the available information the Court could find with a sufficient degree of certainty that the domestic authorities investigated the applicant's activities in an essentially passive manner and did not incite him or her to commit an offence, that will normally be sufficient for the Court to conclude that the subsequent use in the criminal proceedings against the applicant of the evidence obtained by the undercover measure does not raise an issue under Article 6 § 1 of the Convention.

(c) However, if the Court's findings under the substantive test are inconclusive owing to a lack of information in the file, the lack of disclosure or contradictions in the parties' interpretations of events or if the Court finds, on the basis of the substantive test, that an applicant was subjected to incitement, contrary to Article 6 § 1 of the Convention, it will be necessary for the Court to proceed, as a second step, with the procedural test of incitement (see, in this respect, Pătraşcu v. Romania , no. 7600/09, §§ 36-�41, 14 February 2017).

(b) Application of those principles to the case

i. Substantive test of incitement

35. Turning to the arguments adduced in the present case as regards the substantive test, the Court observes that the parties disagreed as to whether the authorities had carried out the investigation in the applicant's case in an essentially passive manner. In particular, they differed as to D's role in the applicant's acting as an intermediary for the drug sale and the existence of objective suspicions that the applicant had been regularly trafficking drugs prior to the setting up of the undercover operation (see paragraphs 27 and 29 above).

36. The Court observes that the domestic authorities have produced no evidence to substantiate their claim that before the intervention by D., the police had reason to suspect that the applicant was a drug dealer. The police report of 21 June 2005 did not offer any more details in respect of the information the authorities had about the applicant's alleged involvement in drug trafficking and how that information had been acquired by the police (see paragraph 6 above). Therefore, a mere claim by the police to the effect that they possessed information concerning the applicant's involvement in drug dealing - a statement which does not seem to have been scrutinised by the courts - does not provide a sufficiently solid basis for the Court to conclude that the applicant's criminal activities were already ongoing prior to him being contacted by D. (see paragraph 8 above).

37. Moreover, the applicant's behaviour was not indicative of any pre-existing criminal activity. In convicting him of drug trafficking, the domestic courts did not rely on either his demonstrable familiarity with the current prices of drugs or his ability to obtain drugs at short notice (contrast with Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004-IV). D. sent the money for the drugs and gave him the name of a common acquaintance, L., to help him find a drug dealer (see paragraph 8 above). The Court cannot but note the significant role played by D. in arranging the deal, which runs counter to the requirement of passivity on the State agent's part. D. initiated the whole criminal activity under the direct supervision of the investigation bodies. Her friendship with the applicant seemed to have played a significant role in the events leading to the apprehension of the applicant with drugs in his possession. Although she was not a State agent and it appears that she had not been authorised to act as an undercover agent, the incriminating evidence obtained because of her intervention led to the prosecution and conviction of the applicant (see paragraph 15 above).

38. In the light of the above, the Court considers that the police did not confine themselves to investigating the applicant's criminal activity in an essentially passive manner. There is nothing to suggest that the offence would have been committed had it not been for the above-mentioned intervention by D. The applicant's conviction for drug trafficking, in so far as his procuring the ecstasy tablets for D. is concerned, was based mainly on evidence obtained as a result of the police operation.

ii. Procedural test of incitement

39. The Court will further proceed to the second step of its assessment and examine whether the applicant was able to raise the issue of incitement effectively in the domestic proceedings, and assess the manner in which the domestic courts dealt with his plea (see paragraph 34 in fine above).

40. In this connection, the Court observes that the applicant raised a plea of incitement with the trial courts (see paragraphs 14, 17 and 20 above). The domestic courts were therefore under an obligation to take the necessary steps to uncover the truth, while bearing in mind that the burden of proof fell on the prosecution to prove that there had been no incitement. They should accordingly have verified, by assessing the information in the case file and, if necessary, reviewing the relevant material concerning the undercover operation and examining the officials and other individuals involved, on what basis the authorities suspected the applicant of involvement in drug dealing.

41. In this connection the Court notes the summary manner in which the domestic courts rejected the allegations of police entrapment (see paragraph 15 above).

42. The Court also notes that the applicant did not, at any stage of the proceedings, have an opportunity to have D. questioned. By failing to hear her as a witness, the domestic courts deprived the applicant of the possibility of clarifying to what extent D.'s actions had influenced and determined his behaviour. That essential question was nevertheless in dispute. The failure to hear D. also prevented the courts from forming their own opinion on the latter's credibility.

43. The courts did not give any reasons for denying the applicant the right to have D. questioned (see paragraphs 16 and 19 above). The Court notes in this regard that unlike in similar drug-trafficking cases, the courts did not hold that the police authorities had a legitimate interest in preserving the anonymity of their agent, so that they could protect him and also make use of him again in the future (contrast with Scholer v. Germany , no. 14212/10, § 52, 18 December 2014). In any event, the applicant knew D. well.

44. Furthermore, there is no evidence to suggest that D. was asked, and refused, to make depositions within the framework of the applicant's trial for any reason. The national courts did not assess the impact of D.'s absence.

45. In the light of the above, the Court considers that the applicant was convicted on the basis of evidence obtained by way of police incitement and that the courts which examined the case did not carry out a careful examination of his assertion that he had been incited to commit the offence imputed to him.

46. Accordingly there has been a violation of Article 6 § 1 of the Convention.

47. Finally, the Court does not consider it necessary to examine the remaining argument raised by the applicant under Article 6 § 3 (d) of the Convention (see Ciprian Vlăduț and Ioan Florin Pop v. Romania , nos. 43490/07and 44304/07, § 94, 16 July 2015).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

48. 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

49. The applicant claimed 50,000 euros (EUR) in respect of non-�pecuniary damage.

50. The Government submitted that no non-pecuniary damage should be awarded to the applicant as no right under the Convention had been violated by the Romanian authorities. Moreover, they considered the amount requested by the applicant as excessive and speculative. They also submitted that in similar cases (such as Bulfinsky v. Romania , no. 28823/04, § 61, 1 June 2010 and Constantin and Stoian v. Romania , nos. 23782/06and 46629/06, § 71, 29 September 2009) in which the Court had found a violation of Article 6 on account of police incitement and failure of the domestic authorities to investigate such a claim, the amount awarded to the applicant in respect of non-pecuniary damage had been EUR 10,000.

51. Ruling on an equitable basis, the Court awards the applicant EUR 2,400 in respect of non-pecuniary damage.

52. The Court also considers that, where, as in the instant case, an individual has been the victim of proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if he or she so requests, represents in principle an appropriate way of redressing the violation (see Gençel v. Turkey , no. 53431/99, § 27, 23 October 2003). In this respect it notes that the applicant may apply to have the proceedings reopened under Article 465 of the Code of Criminal Procedure, should he choose to do so (see Mischie v. Romania , no. 50224/07, § 50, 16 September 2014, and Ciprian Vlăduț and Ioan Florin Pop , cited above, § 99).

B. Costs and expenses

53. The applicant also claimed EUR 8,500 for lawyers' fees. He claimed that he could not produce evidence to support the whole amount, and adduced bills attesting to the payment of 12,500 Romanian lei (approximately EUR 3,500) to his lawyer in the domestic proceedings.

54. The Government maintained that the fact that the applicant had submitted two invoices dated 22 June and 9 February 2006 respectively could not be considered as sufficient to justify the reimbursement of the amount requested.

55. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 3,500 for the proceedings before the domestic courts

C. Default interest

56. 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 application admissible;

 

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

 

3. Holds that there is no need to examine the complaint under Article 6 § 3 (d) of the Convention;

 

4. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,500 (three thousand five hundred 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;

 

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President