SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 67506/01
by Vytautas BENDŽIUS
against Lithuania
The European Court of Human Rights (Second Section), sitting on 26 April 2005 as a Chamber composed of:
MrA.B. Baka, President,
MrJ.-P. Costa,
MrR. Türmen,
MrK. Jungwiert,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrsE. Fura-Sandström, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 19 December 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the fact that Mrs D. Jočienė, the judge elected in respect of Lithuania, withdrew from sitting in the case (Rule 28), and that the respondent Government appointed Mr J.-P. Costa, the judge elected in respect of France, to sit in her place (Article 27 § 2 of the Convention and Rule 29 § 1),
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vytautas Bendžius, is a Lithuanian national, who was born in 1970. At present he is detained in Pravieniškės prison. The respondent Government were represented by Mrs D. Jočienė of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1996 criminal proceedings were instituted against the applicant for a drug-related offence, but they were subsequently discontinued.
On an unspecified date in 1999, the Lithuanian police obtained certain information about the applicant's activities from Russian law-enforcement agencies. That information was verified by the organised crime unit of the Lithuanian Ministry of Interior (“verification file” no. 07-2-021-99). The Government state that the material in the “verification file” has been classified as secret (see below also).
On an unspecified date the organised crime police applied to the prosecution for a “Criminal Conduct Imitation Model” (the “model”) to be authorised (see the 'Relevant domestic law and practice' part below). The police stated in the application that they had “operative information” concerning the applicant, obtained from the Russian authorities and confirmed by the “verification file”.
On 23 July 1999 the Deputy Prosecutor General accepted the application and authorised the model. According to the model, AB, a private person living in Russia, and PP, a law-enforcement official from Russia, were permitted to “imitate criminal actions under Articles 232-1, 312 and 329 of the Lithuanian Criminal Code” (see the 'Relevant domestic law and practice' part below).
The applicant submits that, in late July and early August 1999, he had been contacted on a number of occasions by AB and PP, the identity of whom had been unknown to him at the time. They had asked him to sell them drugs.
The Government deny the applicant's statements. They submit that AB and PP entered into contact with the applicant “through other reliable persons”. The Government state that the applicant himself had offered to sell drugs to AB and PP.
On 10, 17 and 24 August 1999 the applicant sold, respectively, 8, 10 and 86 grams of heroin to AB and PP.
On 23 August 1999 a criminal case was instituted against the applicant under the then Article 232-1 of the Criminal Code. He was arrested
on 25 August 1999.
On 10 March 2000 the Jurbarkas District Court found the applicant guilty under Article 232-1 of the Criminal Code of having unlawfully obtained, stored and distributed drugs. The applicant was sentenced to 8 years' imprisonment. The court held that the applicant had obtained the heroin from an unidentified person, and that he had stored and sold the narcotics on the request of AB and PP. The incriminating evidence in the case was given by AB and PP themselves, and also by the applicant's wife and brother who had confirmed that “the Russians” had telephoned the applicant several times.
The applicant appealed, claiming inter alia that he accepted his guilt, but requesting a milder sentence in view of the absence of previous convictions and his family status.
On 24 May 2000 the Kaunas Regional Court upheld the judgment.
On 1 August 2000 the applicant submitted a cassation appeal, claiming inter alia that he had been incited to commit the offence by AB and PP acting as police undercover agents.
On 17 October 2000 the Supreme Court rejected the cassation appeal, stating inter alia:
“The [applicant's] argument that the police officers organised a provocation against him ... is unfounded. Article 7 paragraph 2 of the Operational Activities Act provides that ... in view of the primary information about criminal activities of a person ... [the authorities] may act under [the] model with the view to protecting the more important interests of the State, society or the individual. It appears from the case-file that, having obtained operational information about V. Bendžius's dealings in narcotics, witnesses [AB and PP] acted as buyers of the drugs under [the] model[;] the witnesses' actions were lawful. These actions served to prevent the distribution of narcotic substances.”
B. Relevant domestic law and practice
The Criminal Code applicable at the material time punished the acts of unlawfully making, obtaining, storing, shipping, selling or otherwise distributing psychotropic or narcotic substances (Article 232-1), smuggling (Article 312) and breaching the relevant currency or securities regulations (Article 329).
In accordance with Article 2 paragraph 12 of the Operational Activities Act 1997 (amended in 1999), a “Criminal Conduct Imitation Model” (“the model”) serves to denote authorised actions having the elements of a crime, aimed at the protection of the more important interests of the State, society or the individual.
Under the second paragraph of Article 4 of the Act, operational activities within the meaning of the Act can be undertaken in the following circumstances:
when the person who has prepared or committed a serious offence is not identified;
upon the possession of the “verified initial information” about a criminal act;
upon the possession of the “verified initial information” about a person's belonging to a criminal organisation;
upon the suspicion of activities by foreign secret services;
when an accused, defendant or convicted person absconds.
Article 7 paragraph 2 (3) of the Act provides that the model can be undertaken only upon the existence of one of these circumstances, and if authorised in accordance with Articles 10 and 11 of the Act.
Pursuant to Articles 10 and 11, the model shall be authorised by the Prosecutor General or his Deputy upon an application in this respect by the competent police or investigative authority. It shall be effective for a period of one year.
In accordance with Article 8 paragraph 1 (3) of the Act, the authorities shall protect persons from active pressure to commit an offence against their own will.
Article 13 paragraph 3 of the Act provides a right to contest the lawfulness of evidence obtained by using special equipment.
In the case of Pacevičius and Bagdonas v. Lithuania (no. 57190/00, struck out of the Court's list of cases on 23 October 2003), the Court of Appeal had ruled on 29 April 1999, inter alia, that:
“According to Article 2 of the Operational Activities Act, the Criminal Conduct Imitation Model (hereinafter “the model”) serves to denote actions containing elements of an offence, authorised with a view to protecting the more important interests of the State or the individual. ... The model shall be authorised with respect to [the police] actions, not with respect to an individual committing crime.
in the commission of a crime. This factor ... does not render unlawful the evidence collected during the implementation of the model. In particular, establishing the The [police] request [for authorisation] referred to the result which was sought - to establish the identity of all persons, involved in the trafficking [of people] ... .
Of course, the [police] officers cannot foresee in advance which persons will take part identities of members of a criminal group was a specific aim of the [prosecution when] authorising the model. ... .
The Act does not require that relevant facts be submitted about a person in order to justify the authorisation of [the] model. [The Act] only imposes the requirement [on the police] to submit facts which justify application [of the model] ...”
By decision of 12 October 1999 in that case, the Supreme Court held regarding the use of police undercover agents as follows:
“The[se] circumstance[s] [were] not known by [the applicants] at the time of the commission of an offence. They were convinced that they were trafficking persons who had crossed the Lithuanian border illegally. As Article 82-1 of the Criminal Code provides that the crime is committed by direct intent, [the applicants'] error as to the subject of the crime has no importance on the classification of their conduct. By being convinced that they were trafficking [people], they exercised in fact the conduct stipulated in Article 82-1 ... Their conduct was therefore properly classified as a completed offence. The authorisation of [the model] only served to legalise the actions of the police officers who took part in the trafficking.”
On 8 May 2000 the Constitutional Court ruled in the Milinienė case (see decision on admissibility in Milinienė v. Lithuania, no. 74355/01) that the Operational Activities Act was generally compatible with the Constitution. It held in particular that the model constituted a specific form of operational activity using intelligence and other secret measures in order to investigate organised and other serious crime. It was emphasised that the use of clandestine measures, as such, was not contrary to the European Convention of Human Rights, or indeed the Constitution, as long as such measures were based on clear and foreseeable legislation and were proportionate to the legitimate aims sought. The Constitutional Court found that the Act clearly regulated the scope and procedure for the use of various forms of operational activities, such as the model.
The Constitutional Court emphasised that the commission of a fresh offence could not be incited (kurstoma) or provoked (provokuojama) by way of the model. Furthermore, it did not allow incitement of a person to commit a crime even where the person had planned the offence but had subsequently discontinued his actions. It was observed in this respect that, by authorising and implementing the model, the investigative authorities and their undercover agents could only “join the continuing criminal acts that [had] not yet been concluded”. The Constitutional Court emphasised that it was for the courts of ordinary jurisdiction to establish in each particular case whether the investigating authorities had gone beyond the limits of the model, as permitted by the Act, regarding alleged incitement, provocation or another form of abuse of the model.
It was also stated that the authorisation of the model did not amount to a licence to commit a crime for a police agent or third person acting as an undercover agent. The authorisation only meant that the actions of the agent were legitimate from the point of view of domestic law, even if the agent could imitate a real crime by way of those actions. The overall aim of the operational activities, including the model, was to investigate crime, which related to the competence of prosecutors as well as courts. Thus the Constitutional Court held that no judicial authorisation was required for the model, an authorisation by a prosecutor being sufficient. Furthermore, no judicial authorisation was necessary, constitutionally, for secret audio or video recordings of conversations in the implementation of the operational activities under the Act. Only wiretapping and surveillance techniques by way of the use of stationary devices warranted a court order (Article 10 paragraph 1 of the Act).
COMPLAINTS
Under Article 6 § 1 of the Convention, the applicant complained that he had been deprived of a fair trial in that he had been incited to commit an “offence” which had not been happening in reality but which had been organised by the authorities.
THE LAW
The applicant complained under Article 6 § 1 of the Convention, which provides, insofar as relevant, as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government submitted first that the Court was not competent to deal with the applicant's complaints in that they related mostly to questions of fact and the application of domestic law, thus amounting to “fourth instance issues”.
The Government contended that there had, in any event, been no incitement of the applicant, and no breach of Article 6 in view of the application of the model in his case. The model had been authorised in order to secure the important interests of society, on the basis of “operative information” about the applicant's involvement in drug-dealing, which had been confirmed in “verification file” no. 07-2-021-99 (see the 'Facts' part above). According to the Government, this “operative information” obtained from the Russian authorities and attested by the “verification file” had indicated that the applicant and his twin brother had been distributing heroin and looking for customers on the territory of the Russian Federation and Lithuania. However, the respondent Government emphasised that the “operative information” was classified as secret, pursuant to the State and Official Secrets Act.
On the basis of that initial information, the police had requested the model to be authorised, and had ordered AB and PP to perform their tasks pursuant to that model without any inappropriate pressure being put on the applicant. As to the question whether the offence would have occurred without the authorities' intervention, the Government emphasised the “particularity” of drug-related crimes, as it would have been impossible to establish the same elements of the crime if the authorities had not intervened. For example, it would have been impossible to predict the quantity and type of drugs which the applicant would have sold to other persons. The commission of the crime had, in any event, only been “probable” from the legal point of view. In this respect, not only the applicant but also his brother or another third person – code-named A, but not identified in the course of the proceedings - could have taken part in the commission of the offence. Regardless of these probabilities, by reference to the “initial operative information” in the possession of the Lithuanian and Russian authorities, the Government submitted that the applicant would have committed, if not the same, an almost identical offence. The purpose of the authorities in this case had been wider, namely to investigate the participation of the applicant in a drug distribution ring. Consequently, the model had been authorised with a view to investigating a number of possible offences by the applicant or other persons - not only drug-dealing but also smuggling and currency breaches.
At the same time the Government stressed that the authorisation of the model and the use of the undercover agents had served only to facilitate the investigation of the offence which had been prepared and executed on the applicant's initiative and will. According to the Government, in authorising and executing the model, the authorities had only sought to “join the applicant's continuing acts [while] appropriately recording them, to legalise the 'operative information' ... and prevent further drug-dealing.”
On the facts of the case, the Government noted that AB and PP had entered into contact with the applicant “through other reliable persons”, and that it had been the applicant who had offered to buy them heroin. Thereafter the applicant, not AB and PP, had taken the initiative and occupied the dominant position in executing the criminal acts. The case file contained no information that the applicant had been looking for drugs at the request of AB and PP. In addition, while the applicant had no previous convictions, he had already been suspected of a drug-related crime in 1996, thereby attesting his propensity to crime. Finally, the applicant's own version of the alleged instigation had not been consistent as he had not raised the question before the appeal court, only having complained about it during the trial and then in his cassation appeal before the Supreme Court. In view of these circumstances, the Government concluded that the applicant had been predisposed to commit the offence, and that he would have committed it even if the model had not been authorised and undertaken in this case. In sum, there had been no incitement to commit the crime, in contrast to the Teixeira de Castro v. Portugal case (no. 25829/94, 9.6.1998, ECHR 1998-IV, §§ 34-39).
The applicant disagreed, stating that the authorisation of the model in his case had served to create fresh evidence, rather than investigate an offence which he had been predisposed to commit. He stated that, as a result, he had been entrapped in the “crime” set up by AB and PP acting as police undercover agents. Furthermore, the applicant submitted that the domestic courts had not given an unequivocal answer to his complaint about the alleged incitement against him, as they had not investigated the relevant facts to establish the true source of the initiative to commit the crime. There had thus been a breach of Article 6.
In view of the parties' observations, the Court finds that the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
S. Naismith A.B. Baka
Deputy RegistrarPresident
Full & Egal Universal Law Academy