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THE FACTS
The applicant, Mr Giuseppe Calabrò, is an Italian national, born in 1950 and currently detained in Milan Prison. He was represented before the Court by Mr P. Sciretti, of the Milan Bar.
A. The circumstances of the case
The facts of the case, as presented by the applicant, may be summarised as follows.
1. The applicant’s arrest and the proceedings at first instance
On 19 July 1993 the applicant was arrested in flagrante delicto by the Brescia police for importing a large quantity (approximately 46 kg) of cocaine.
According to the police report, the drugs had been imported into Italy by an “infiltrator” called Jürgen Vervoorst (“Jürgen”) as part of a joint operation by the Italian and German police. On 17 July 1993 Jürgen had stayed at the Euroresidence Hotel in Brescia, which was under close police surveillance. On 18 July 1993 he had telephoned X, a drug trafficker living in Marbella (Spain) who was interested in buying drugs; X said that he had discussed the subject with the applicant. On 19 July 1993 X had informed Jürgen that the applicant was now in Brescia. The applicant had subsequently attended the Euroresidence Hotel, contacted Jürgen and asked him whether he had the “merchandise” (roba, an expression often used in criminal circles to refer to hard drugs). On being told that he had, the applicant had gone up to Jürgen’s room where he was shown a suitcase containing 20 kg of cocaine. He had made a gesture of approval and had immediately been arrested. The scene was recorded with audiovisual devices. Subsequently, X had telephoned the Euroresidence Hotel and pressed for news of the applicant.
By an order of 23 July 1993 the Brescia investigating judge ruled that the applicant’s arrest was lawful and ordered his detention pending trial.
On 5 July 1994 the applicant was committed for trial by the Milan Criminal Court on charges of international drug trafficking.
The trial began on 26 October 1994. Numerous witnesses, including officers from the Italian police and the German federal police (Bundeskriminalamt – “the BKA”) gave evidence. They provided details of the nature of the police operation that had led to the applicant’s arrest and of the procedures used.
On 17 July 1995 the Milan Criminal Court, which considered it “absolutely necessary” to hear Jürgen’s version of the events, issued a request for evidence on commission in which it asked the German authorities to take evidence from Jürgen in Germany. The request was transmitted to the German Ministry of Justice in Stuttgart. In a memorandum dated 1 November 1995 the Wiesbaden district judge informed the Milan Criminal Court that, according to information received from the BKA, it had not proved possible to find Jürgen, despite numerous attempts. He had gone on holiday on 6 September 1995 and had not been in touch since.
On 4 December 1995, in view of the fact that Jürgen could not be located and that the defence had waived its right to have him examined, the Milan Criminal Court withdrew its request of 17 July 1995 for evidence on commission. At the applicant’s request, it decided to place in the case file certain statements made by Jürgen in connected criminal proceedings pending in Germany.
In a judgment of 22 January 1996 the Milan Criminal Court convicted the applicant and sentenced him to fifteen years’ imprisonment and a fine of 300,000,000 Italian lire (ITL) (approximately 154,937 euros (EUR)).
It relied in its decision on the circumstances of the applicant’s arrest (which had been confirmed by an audiovisual recording), the transcripts of telephone conversations Jürgen had had with X and other people implicated in drug trafficking, and statements by the Italian police and the BKA. That evidence showed that Latin-American drug traffickers had asked Jürgen, who was well known in drug-trafficking circles, whether he knew anyone who would be interested in buying cocaine. Three Italian nationals, X, Y and the applicant, had contacted Jürgen to express their interest, while X and the applicant had subsequently given him money.
The Criminal Court did not consider it necessary to examine whether, as an undercover agent, Jürgen was liable to prosecution under Italian law. His statements had not been made in Italy, but in connection with the proceedings in Germany and, under the laws of that country, he was immune from prosecution. Furthermore, most of his statements concerned his links with the German police and were not relevant to the applicant’s case. The only document that was of relevance was one in which Jürgen had described his dealings with X and the applicant in order to reach an agreement for the sale of the cocaine and to make arrangements for delivery. In view of the fact that the German authorities said that Jürgen could not be found, his statements had henceforth to be regarded as “unrepeatable” (irripetibili) and, consequently, admissible in evidence on the merits of the charges against the applicant. His statements corroborated and confirmed other prosecution evidence against the applicant.
In sentencing the applicant, the Criminal Court noted in particular that he had previous convictions (albeit for less serious offences) and that other criminal proceedings were pending against him. It also noted that it was apparent from the nature of the offence that he was active in drug-trafficking circles.
2. The appeal proceedings
Both the prosecution and the applicant appealed.
The applicant submitted, inter alia, that the operation mounted by the police for the simulated sale of drugs was illegal. He argued that while the relevant Italian legislation (Articles 97 and 98 of Presidential Decree no. 309 of 1990) authorised operations for the simulated purchase and controlled delivery of drugs in exceptional cases, under no circumstances did it permit the fictitious sale of drugs. In his submission, Jürgen and the other police officers who took part in the case should have been examined as co-defendants, not witnesses. The fact that they had not been examined in that capacity meant that their statements should have been excluded. Furthermore, as the true identity of Jürgen had not been duly disclosed, admitting his statements in evidence infringed the fundamental principles of the Italian legal system.
Lastly, the applicant argued that he should have been acquitted under Article 49 § 2 of the Criminal Code (see “Relevant domestic law” below), as, had it not been for the actions of Jürgen and other police officers, the alleged offence would not have been committed.
On 4 November 1996 the Milan Court of Appeal, which considered it “absolutely necessary” for Jürgen to give oral testimony, issued a request for evidence on commission in which it asked the German authorities to hear Jürgen and to ensure that he was assisted by a lawyer.
The Wiesbaden District Court arranged for a hearing on 24 March 1997 for evidence to be taken from Jürgen in accordance with the relevant provisions of German law. It indicated that the Italian judges, a representative from the public prosecutor’s office and the applicant’s lawyers were entitled to attend.
However, on 21 March 1997 the BKA informed the Milan Court of Appeal that Jürgen’s whereabouts remained unknown. The hearing on 24 March 1997 was cancelled. On 17 April 1997 the applicant, finding the BKA uncooperative, applied for an order requiring Jürgen to appear before the Italian judicial authorities.
The President of the Milan Court of Appeal granted his application on 8 May 1997, ordering Jürgen to appear on 27 June 1997 and inviting him to instruct a lawyer of his choice. The order was forwarded to the German authorities, who were requested to serve it on Jürgen in accordance with Articles 8 et seq. of the European Convention on Mutual Assistance in Criminal Matters. They were advised that Jürgen could remain anonymous.
Jürgen did not attend the hearing on 27 June 1997.
By a judgment of 27 June 1997, which was lodged with the registry on 3 February 1999, the Milan Court of Appeal increased the applicant’s sentence to sixteen years and three months’ imprisonment and a fine of ITL 350,000,000 (approximately EUR 180,759).
It noted, firstly, that it was possible under the German Code of Criminal Procedure for a witness’s identity not to be disclosed in the record if the witness was in danger. In such cases, the papers certifying the witness’s identity were retained by the public prosecutor’s office. It further found that there could be no doubt as to Jürgen’s identity, as the case file showed that, on being questioned on 15 July 1993 by the Panama public prosecutor’s office, he had produced a passport in the name of Jürgen Vervoorst and stated that he had been working as a secret agent for the BKA and the American police for ten years. Lastly, several witnesses had said that he was the man responsible for the operation for importing cocaine into Europe.
The Court of Appeal also said that, although it had made several attempts to obtain oral testimony from Jürgen, this had proved impossible. Accordingly, by virtue of Article 238 § 3 of the Italian Code of Criminal Procedure (“the CCP”), his statements to the German authorities could be placed in the court file and relied on by the court when deciding the case.
As to Jürgen’s status in the Italian proceedings, the Court of Appeal observed that undercover agents were only entitled to immunity if their role in the criminal conduct concerned was “indirect and peripheral”, that is to say limited to surveillance and observing the actions of third parties. In the case before it, since Jürgen had played an active role in bringing the cocaine from Latin America to Germany and from there to Italy, he should have been treated as a co-defendant in the Italian proceedings. The fact that he had not been meant that his statements could only be relied on to the extent that they did not disclose matters for which he could be held criminally liable. The admissible part of his statements had shed light on the dynamics of the police operation that had led to the applicant’s arrest.
As regards the applicant’s objection under Article 49 § 2 of the Criminal Code, the Court of Appeal noted that that provision precluded the imposition of a penalty on persons whose acts were wholly incapable of producing dangerous or harmful consequences. Moreover, the intervention of an undercover agent had no effect on a defendant’s acts if the defendant already had an intention to commit the offence. The Court of Appeal said that in the case before it the applicant had taken various preparatory steps: he had asked Jürgen to transport hundreds of kilograms of cocaine, paid him sums of money, remained in touch with him and attended the rendezvous for the delivery of the drugs.
3. The applicant’s appeal to the Court of Cassation
The applicant appealed to the Court of Cassation. He relied mainly on the same grounds of appeal, but also pointed out that Jürgen’s identity had not been established with certainty, and argued that his statements were therefore inadmissible ab initio.
In a judgment of 15 October 1999, the text of which was lodged with the registry on 14 January 2000, the Court of Cassation held that the Court of Appeal had dealt with all the issues logically and correctly and dismissed the applicant’s appeal.
As regards the alleged violation of Article 49 § 2 of the Criminal Code, it noted that an agreement over the arrangements for the sale of the cocaine had already been made in Marbella and that the applicant had decided to perform that agreement of his own free will.
B. Relevant domestic law (Italy)
Article 238 of the CCP sets out the cases in which records of evidence obtained in other criminal proceedings may be placed in the case file (and therefore be used in evidence on the merits of the charges). Paragraph 3 of that provision lays down, inter alia, that “depositions which ... cannot be repeated” may in all cases be placed in the case file. Article 78 § 2 of the provisions on execution of the CCP provides: “depositions which cannot be repeated obtained by a foreign police force may be placed in the court file, either with the parties’ agreement or after the maker of the deposition has been heard ...”
Article 49 § 2 of the Criminal Code prohibits punishment being imposed for acts or omissions which, by their nature or owing to the absence of a subject matter, are incapable of producing dangerous or harmful consequences.
COMPLAINTS
1. The applicant complained under Article 6 § 3 (d) of the Convention that he had not been given an opportunity to examine Jürgen.
2. He further complained that he had been denied a fair trial within the meaning of Article 6 § 1 of the Convention, as he had been incited by Jürgen to commit the offence that had resulted in his conviction.
3. Relying, lastly, on Articles 6 § 1 and 5 § 3 of the Convention, he complained of the length of his detention pending trial.
THE LAW
1. The applicant complained that he had been convicted on the basis of the version of events given by Jürgen, a witness whom he had had no opportunity to examine or to have examined.
The relevant parts of Article 6 §§ 1 and 3 (d) of the Convention read as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ...
…
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;
…”
The applicant emphasised that Jürgen’s oral testimony, which was considered “absolutely necessary” by the Criminal Court and the Court of Appeal, had been of primary importance for establishing the arrangements for the sale of the cocaine and the nature of the agreements between the police and the undercover agent. Furthermore, the idea that Jürgen, who was well known to the BKA, could no longer be traced was, in his submission, implausible; in his view, the German authorities had preferred to keep the identity of their undercover agent secret, in breach of their obligations under the European Convention on Mutual Assistance in Criminal Matters. In that connection, the applicant said that Jürgen Vervoorst was probably a false name intended to conceal the true identity of the person concerned.
The Court notes, firstly, that at the hearing on 4 December 1995 the applicant’s lawyer waived his right to examine Jürgen and requested that certain of his statements be placed in the case file. As a result, the Milan Criminal Court withdrew the request for evidence on commission it had issued on 17 July 1995. However, the Court does not consider it necessary to examine whether the applicant, who subsequently made several determined requests for Jürgen be called to give evidence, waived his right to examine the witness or to have him examined, since that complaint is in any event inadmissible for the reasons set out below.
Since the requirements of paragraph 3 of Article 6 represent particular aspects of the right to a fair trial guaranteed in paragraph 1, the Court will examine the applicant’s complaints under both provisions taken together (see, among other authorities, Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I).
The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).
In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, p. 711, § 51, and Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 21, § 49). In particular, the rights of the defence are restricted to an extent that is incompatible with the requirements of Article 6 if the conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial (A. M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX, and Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, pp. 56-57, §§ 43-44).
In the instant case, the Court notes that the Italian authorities made considerable efforts to obtain oral testimony from Jürgen, having made several orders requiring him to attend court to give evidence, and issued a request for evidence on commission.
However, despite those efforts, they were unable to secure his presence at the hearing as, according to the information received from Germany, he could not be found.
The Court considers that it was not for the Italian authorities to make enquiries to establish the whereabouts of a person residing on the territory of a foreign State. By making an order for Jürgen’s attendance and issuing an international request for evidence on commission, the Criminal Court and the Court of Appeal used the means at their disposal under domestic law to secure the presence of the witness concerned. Moreover, they had no alternative but to rely on the information received from qualified sources based in Germany, and in particular the Wiesbaden district judge and the BKA. Under these circumstances, the Italian authorities cannot be accused of a lack of diligence engaging their responsibility before the Convention institutions (see Kostu v. Italy (dec.), no. 33399/96, 9 March 1999).
It would clearly have been preferable for Jürgen to have been heard in person, but his unavailability could not be allowed to block the prosecution, the appropriateness of which was, moreover, not for the European Court to determine (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 28).
The Court also notes that Jürgen’s statements were not the only evidence on which the trial courts relied to convict the applicant. The other factors were the circumstances of the applicant’s arrest (which were confirmed by an audiovisual recording), transcripts of recordings made using telephone monitoring devices and the evidence of officers from the Italian police and the BKA.
In these circumstances, the Court cannot find that the rights of the defence were infringed to the point of constituting a breach of paragraphs 1 and 3 (d) of Article 6 by the fact that it was not possible to examine Jürgen at the hearing (see P.M. v. Italy (dec.), no. 43625/98, 8 March 2001, and, mutatis mutandis, Artner v. Austria, judgment of 28 August 1992, Series A no. 242-A, pp. 10-11, §§ 22-24).
As regards the applicant’s allegations concerning the conduct of the German authorities, who he asserted failed to comply with their obligations under the European Convention on Mutual Assistance in Criminal Matters, the Court reiterates that it has no jurisdiction to ensure compliance with instruments other than the European Convention on Human Rights and its Protocols. In any event, there is no evidence to show that the authorities concerned refused to trace Jürgen in order to prevent him from being served with a summons to attend.
It follows that that complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant submitted that he had been denied a fair trial, within the meaning of Article 6 § 1 of the Convention, as it was Jürgen who incited him to commit the offence he was subsequently convicted of.
He maintained that, far from merely carrying out surveillance and observing criminal activity that was already taking place, Jürgen had pushed him into buying the drugs, thereby violating the relevant provisions of Italian and German law.
The Court reiterates that the use of undercover agents must be restricted and safeguards put in place even in cases concerning the fight against drug trafficking. While the rise in organised crime undoubtedly requires that appropriate measures be taken, the right to a fair administration of justice nevertheless holds such a prominent place (see Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, pp. 13-15, § 25) that it cannot be sacrificed for the sake of expedience. The general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement (see Teixeira de Castro v. Portugal, judgment of 9 June 1998, Reports 1998-IV, p. 1463, § 36).
The Court notes, however, that the present case is distinguishable from Teixeira de Castro, in which it found a violation of Article 6 § 1 of the Convention on the ground that two police officers had incited the commission of a criminal offence when there was no evidence to suggest that the offence would have been committed without their intervention.
In that connection, it should be noted that Mr Teixeira de Castro did not have a criminal record and the relevant authorities had no good reason to suspect him of being a drug trafficker. The Court thus rejected the respondent Government’s suggestion in that case that he had a propensity for offending and found that the police officers had put pressure on him to commit an offence.
In the present case, however, the undercover agent had merely made it known that he was prepared to import and sell very large quantities of drugs. As is clear from the judgment of the Milan Criminal Court of 22 January 1996, the applicant then contacted Jürgen of his own volition, paid him a sum of money and organised a rendezvous to take delivery of 46 kg of cocaine. In so doing, he showed that he was involved in an international drug-trafficking ring.
Furthermore, as the Court has just noted, the undercover agent’s statements were not a decisive factor in the applicant’s conviction, unlike the position in Mr Teixeira de Castro’s case. In addition, the applicant was given an opportunity in the proceedings in the Milan Criminal Court to question the other police officers who had taken part in the investigation, and to clarify the nature of the police operation that had led to his arrest and the procedures used.
In these circumstances, it cannot be concluded that Jürgen incited the commission of an offence by his actions or that the offence would not otherwise have been committed. The Court consequently finds that Jürgen did not go beyond his role as an undercover agent (see, a contrario, Teixeira de Castro, cited above, p. 1463, §§ 37-38) and, therefore, the applicant was not denied a fair trial.
It follows that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicant complained, lastly, of the length of his detention pending trial.
The Court will examine this complaint under Article 5 § 3 of the Convention, which provides:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. …”
The Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months from the date on which the final decision was taken. If the applicant complains of a continuing situation, the starting-point for that period is the end of that continuing situation (see Uzeyir v. Italy (dec.), no. 60268/00, 16 November 2000).
Under the Court’s case-law, Article 5 § 3, which guarantees the right for everyone detained to be tried within a reasonable time, applies only in the situation envisaged in Article 5 § 1 (c), with which it forms a whole (see Ciulla v. Italy, judgment of 22 February 1989, Series A no. 148, p. 16, § 38). A person convicted at first instance is in the position provided for by Article 5 § 1 (a) which authorises deprivation of liberty ‘after conviction’ (see, among other authorities, B. v. Austria, judgment of 28 March 1990, Series A no. 175, p. 14, § 36).
In the instant case, the applicant was convicted on 22 January 1996, and it is that date which should be regarded as the end of the period to be taken into consideration for the purposes of Article 5 § 3 of the Convention.
Since the application was not lodged until 13 April 2000, this complaint is out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
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