FOURTH SECTION

CASE OF PĂTRAŞCU v. ROMANIA

(Application no. 7600/09)

JUDGMENT

STRASBOURG

14 February 2017

FINAL

14/05/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Pătraşcu v. Romania,

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

András Sajó, President,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Egidijus Kūris,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 17 January 2017,

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

PROCEDURE

1. The case originated in an application (no. 7600/09) 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 Alex Fabian Pătraşcu (“the applicant”), on 23 January 2009.

2. The applicant was represented by Mr E.A. Chira and Mr S. Rădulețu, lawyers practising in Bucharest and Craiova respectively. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of 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 of the Convention.

4. On 14 February 2014 the complaint concerning the alleged police incitement was 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 1986 and lives in Botârlău.

A. Events leading to the applicant’s arrest and prosecution

6. On 23 February 2007 X, a plain-clothes police officer from the Buzău County police organised crime unit, approached the applicant in a nightclub. According to a report drafted on 1 March 2007, the meeting had been planned in order to verify information received by the police that the applicant might have been dealing drugs. The report mentioned that X had discussed with the applicant, who claimed that he could get drugs and promised to call with more details. In a second report drafted on 14 April 2007 it was stated that the applicant had called X to ask whether he was interested in buying 2,000 ecstasy tablets at a cost of 10 euros (EUR) each.

7. On 18 April 2007 a prosecutor from the Buzău County department for the investigation of organised crime (“the organised crime department”) opened a criminal investigation against the applicant on suspicion of drug trafficking. A request to intercept his telephone conversations and make ambient voice recordings was authorised by a judge of the Buzău County Court.

8. On the same date the prosecutor from the organised crime department authorised the use of X as undercover police agent in order to determine the facts of the case, identify the offenders and obtain evidence. The prosecutor justified the issuing of the authorisation on the basis that there was reason to believe that the applicant was about to commit a drug trafficking offence.

9. In a report dated 17 May 2007 the chief of the Buzău County police organised crime unit stated that X had called the applicant several times in April and May in order to enquire when the transaction might take place. The report also mentioned that the applicant had replied on several occasions that he was not in possession of the drugs, which were to be brought into the country by friends of his who had not yet returned from abroad.

10. In the early evening of 19 July 2007 the applicant called X and set up a meeting for later that evening. He and a friend, G.G., picked up X by car. X was accompanied by Y, a colleague in plain clothes. The four of them drove to a petrol station where a meeting had been arranged with C.A.O. to buy drugs. The applicant and Y went inside the petrol station while X remained outside and talked to C.A.O. As the deal got underway in the car park of the petrol station, the case prosecutor and ten police officers suddenly intervened and arrested the applicant, C.A.O. and G.G. In the car driven by C.A.O. the police found 742 ecstasy tablets. The offence report drafted on the spot by the police was signed by everyone, including the applicant, without any objection. The police operation was recorded on video.

B. The applicant’s trial and conviction

11. On 25 October 2007 the applicant was indicted with C.A.O. and G.G. for trafficking “high risk” drugs.

12. On 17 January 2008 the applicant and C.A.O. testified before the Buzău County Court. The applicant averred that he had acted as an intermediary for the meeting and subsequent deal between C.A.O. and X because the latter had asked him whether he could get drugs for him. Moreover, X had set the price for the drugs. C.A.O. stated that the drugs found on him had been for his own personal use and that he had had no intention of selling them.

13. The applicant’s lawyer argued before the court that the applicant had in fact been incited by X to act as an intermediary in the drug deal and requested that X be called to give evidence, along with two witnesses in the applicant’s defence. The court allowed the request.

14. On 14 February 2008 the court heard evidence from X, G.C. and one of the witnesses proposed by the applicant who appeared in court. X stated that the applicant had called him in order to arrange the drug deal without any incitement on his part. The applicant’s lawyer had the opportunity to cross-examine X. He asked whether the reports of 1 March and 14 April 2007 had been signed by him and whether the criminal investigation had already been open when he had been authorised to investigate undercover. The two questions were disallowed by the court because they were considered an attempt to disclose X’s identity.

15. The Buzău County Court gave judgment on 22 February 2008. It convicted the applicant of drug trafficking and sentenced him to six years’ imprisonment. The conviction was based on the reports of 1 March and 14 April 2007 and the offence report of 19 July 2007 (see paragraphs 6 and 10 above), as well as on transcripts of the applicant’s telephone conversations with X, ambient recordings of discussions between X and C.A.O. and the in-court testimonies given by the applicant, the co‑defendants and X. The court considered that the applicant’s allegations that he had been incited by X were clearly disproved by the above‑mentioned evidence taken as a whole.

16. The applicant appealed against the judgment. He alleged that X had exceeded his authority and that Y should have also been called to testify in court. He also claimed that X had incited him to commit the offence under coercion and that the first-instance court had failed to respond appropriately to his arguments on that issue.

17. On 26 May 2008 the Ploieşti Court of Appeal rejected the appeal. In reply to the applicant’s arguments, the court held that the authorisation and actions of the undercover police officer had been in accordance with the law. The statement of Y was irrelevant to the case since he had not directly witnessed the deal. The court considered that the applicant had not been incited by X since it was apparent from the evidence in the file that he had called the officer on several occasions and had planned the meeting of 19 July 2007 (see paragraph 10 above).

18. The applicant lodged an appeal on points of law (recurs), reiterating his previous arguments.

19. In a final judgment of 22 October 2008 the High Court of Cassation and Justice dismissed the appeal on points of law. Basing its findings on the reports of 1 March and 14 April 2007 (see paragraph 6 above), the court considered that there had been serious reason to suspect that the applicant would commit a criminal offence at the time of authorisation of the covert operation. It further noted that it was apparent from the documents in the file that X had acted lawfully. In addition, the information collected by X and the applicant’s active participation in the crime in question were supported not only by the police reports, but also by transcripts of the telephone conversations that the applicant had with C.A.O. and X. The court stated that it was clearly apparent from those transcripts that the applicant had initiated calls to X on two occasions in order to act as an intermediary in the drug deal. It also noted on this point that the applicant and the other co-defendants had signed the offence report without any objection (see paragraph 10 above). The applicant’s allegations concerning the unlawfulness of the covert operation and the police incitement were therefore considered to be ill-founded.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

20. The relevant provisions of the Criminal Procedure Code forbidding the use of violence and coercion in order to obtain evidence and the relevant provisions of Law no. 143/2000 on combating drug trafficking are described in Constantin and Stoian v. Romania (nos. 23782/06 and 46629/06, §§ 33 and 34, 29 September 2009).

21. Council of Europe materials concerning special investigation techniques are described in Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR 2008).

22. A comparative law study conducted by the Court on the legislation of twenty-two member States of the Council of Europe (Austria, Belgium, Bulgaria, Czech Republic, Croatia, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Liechtenstein, Lithuania, “the former Yugoslav Republic of Macedonia”, Poland, Portugal, Romania, Slovenia, Spain, Turkey and the United Kingdom) concerning the use of undercover agents in test purchases and similar covert operations is summarised in Veselov and Others v. Russia (nos. 23200/10, 24009/07 and 556/10, §§ 50‑63, 2 October 2012).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

23. The applicant submitted that the criminal proceedings against him had been unfair, as he had been convicted of drug offences which he had been incited to commit by an undercover police officer and essentially on the basis of evidence obtained by that entrapment.

He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

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

A. Admissibility

24. The Court notes that the application 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

1. The parties’ submissions

25. The applicant alleged that the sale of drugs which had led to his conviction had been initiated by the police. He claimed that he had never before been involved in drug transactions and therefore the authorities had no reasonable suspicions against him at the moment when the undercover operation had been authorised. The applicant also claimed that the issue of incitement had not been properly examined in the domestic proceedings.

26. The Government denied that there had been any police incitement in the present case and considered that the evidence in the file supported their assertion. They therefore rejected the allegations of unfairness in the proceedings. In their view, the courts had given a detailed interpretation of the evidence and had explained their conclusions thoroughly. They had not based their decision solely on the undercover agent’s reports, but also on witness testimony and transcripts of the applicant’s intercepted telephone conversations. The Government concluded that the proceedings as a whole, including the way in which the evidence had been obtained, had been fair and that the applicant’s dissatisfaction with their outcome should not lead the Court to re-examine the case by taking on the role of a court of fourth instance.

2. The Court’s assessment

(a) General principles

27. 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 domestic courts to assess the evidence before them (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997-III; Ramanauskas v. Lithuania ([GC], no. 74420/01, § 52, ECHR 2008; and Bykov v. Russia [GC], no. 4378/02, § 88, 10 March 2009).

28. 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 1998-IV, and Ramanauskas, cited above, § 54).

29. 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).

30. To distinguish entrapment from permissible conduct, the Court has developed the following criteria.

(i) Substantive test of incitement

31. When faced with a plea of incitement the Court will attempt, as a first step, to establish whether the offence would have been committed without the authorities’ intervention. The definition of incitement given by the Court in Ramanauskas (cited above, § 55) reads as follows:

“Police incitement occurs where the officers involved – whether members of the security forces or persons acting on their instructions – do not conf