Calabro v. Italie and Germany (dec.)

Information Note on the Court’s case-law 40

March 2002

Calabro v. Italie and Germany (dec.) - 59895/00

Decision 21.3.2002 [Section I]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Undercover agent who did not incite the commission of the offence, although it would not have taken place without his intervention: inadmissible

Article 6-3-d

Examination of witnesses

Absence of opportunity to examine prosecution witness, untraceable abroad: inadmissible

The applicant was arrested by the police while purchasing a large quantity of cocaine. The Italian and German police had co-operated to bring the cocaine into Italy, using an under-cover agent called Jürgen. Jürgen had telephoned X, a drug trafficker wishing to buy the cocaine, who had said that he had spoken about the matter to the applicant. He got in touch with Jürgen and asked him if he had the cocaine. When Jürgen replied that he did, the applicant came to his room. Jürgen then showed him a suitcase containing twenty kilograms of cocaine. The applicant made a gesture of approval and was immediately arrested. The scene had been recorded by audio-visual cameras. In July 1994 the applicant was committed for trial in the Milan District Court on a charge of international drug trafficking. Numerous witnesses, including Italian and German police officers, gave evidence. They described the nature and procedure of the police operation leading to the applicant’s arrest. As the court considered it “absolutely necessary” to hear Jürgen’s version, it sent letters rogatory to the German authorities to examine the witness in Germany. The German authorities replied to the effect that he could not be found. At the applicant’s request, the court decided to include in the case file certain statements which Jürgen had made in related criminal proceedings which were underway in Germany. In a judgment of January 1996 the Milan District Court sentenced the applicant to fifteen years’ imprisonment and a fine. That decision was based on the circumstances of the applicant’s arrest, which had been confirmed by the audio-visual recording, transcripts of telephone conversations and the statements of the Italian and German police officers. Jürgen’s statements corroborated that evidence. In letters rogatory of November 1996 the Milan Court of Appeal, which considered that it was “absolutely necessary” to examine Jürgen, requested the German authorities to summon him and to ensure that he be assisted by a lawyer. They replied that he still could not be found. In a judgment of June 1997 the Milan Court of Appeal increased the penalty imposed on the applicant. His appeal against that judgment was dismissed.

Inadmissible under Article 6 § 1 and  § 3 (d): the Italian authorities had made considerable efforts to secure the presence at trial of the prosecution witness, Jürgen, and they did not have a duty to undertake a search for a person residing in a foreign State. The Italian courts had used the means available to them under domestic law to secure the presence of that witness at the hearing and had to trust the information provided by qualified foreign sources indicating that he could not be found. Accordingly, the Italian authorities could not be deemed to have lacked diligence resulting in their responsibility being established before the Convention institutions. Furthermore, the statements of that witness had not been the only evidence on which the trial and appeal courts had based their decision to convict the applicant. The inability to cross-examine Jürgen at the hearing had not therefore infringed the rights of the defence: manifestly ill-founded.

Inadmissible under Article 6 § 1: unlike the earlier case of Teixeira de Castro, in this case the undercover agent had confined himself to offering to import and sell the drugs. It was the applicant who had spontaneously contacted him, paid him and organised the meeting to hand over the drugs, whereby he had shown himself to be part of an international drug-trafficking network. The applicant’s conviction had not been based to any decisive extent on the statements of the undercover agent, and the applicant had been able to cross-examine the other police officers who had taken part in the investigation and clarify the nature and procedure of the police operation leading to his arrest. In the light of the facts of the case, it had to be concluded that the undercover agent, in exerting pressure of a kind to encourage the commission of an offence, had provoked an offence which, without his intervention, would not have been perpetrated. His intervention had been limited to that of an undercover agent and had not deprived the applicant of a fair trial (see, a contrario, the Teixeira de Castro judgment): manifestly ill-founded.

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This summary by the Registry does not bind the Court.

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