GLAVAN v. THE REPUBLIC OF MOLDOVA

FIFTH SECTION

DECISION

Application no. 42713/13
Tudor GLAVAN
against the Republic of Moldova

The European Court of Human Rights (Fifth Section), sitting on 30 January 2025 as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 María Elósegui,
 Diana Sârcu, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 42713/13) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 May 2013 by a Moldovan national, Mr Tudor Glavan (“the applicant”), who was born in 1951, is detained in Cricova and was represented by Ms N. Nasco, a lawyer practising in Chisinau;

the decision to give notice of the complaints concerning entrapment and insufficient medical treatment in prison to the Moldovan Government (“the Government”), represented by their Agent, Mr L. Apostol, and to declare inadmissible the remainder of the application;

the decision of 19 March 2019 to declare inadmissible the applicant’s complaints under Articles 3 and 13 of the Convention concerning the material conditions of detention and the absence of an effective domestic remedy in this regard, and to adjourn the examination of the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s alleged incitement to commit an offence by the police, in breach of Article 6 § 1 of the Convention.

2.  In a judgment dated 9 February 2012 the Ștefan Vodă District Court found the applicant guilty of possession and sale of cannabis. It noted the applicant’s admission of guilt, according to which he had gathered the plants and brought them home, leaving them on the kitchen table. Upon his return from a trip in October 2010 he took a taxi ride and invited the driver to his home in order to pay him. The driver saw the plants and asked if he could buy some for his own use. In April 2011 two persons, including C.R., who at the time worked for a specialised anti-drug agency, came to him, and asked if he could sell them drugs; he then sold them 57.19 grams of cannabis (THC). Subsequently C.R. called and arranged for another meeting to buy drugs. On 5 May 2011 C.R. came to his house and bought 748 grams of cannabis. Immediately thereafter the applicant was arrested. A search of his house revealed the presence of another 914 grams of cannabis, as well as traces of that substance on a grinder and on other items.

The Court also noted that C.R. had been heard in court and confirmed the existence of operative information from persons involved in drug abuse that the applicant was selling drugs in large quantities. In order to verify that information, a test purchase was carried out which revealed that the substance sold by the applicant was indeed cannabis. During the subsequent purchase the applicant was arrested, and an additional quantity of drugs was found in his house.

3.  The court found that various expert reports and audio-visual recordings of the applicant’s arrest proved that he had offered for sale and then sold to C.R. 748 grams of cannabis.

4.  The higher courts upheld that conviction. In its final judgment of 12 December 2012 the Supreme Court of Justice noted, inter alia, the applicant’s allegation that he had been entrapped by the police and that he had not intended to sell the drugs but had kept them for personal use. The court rejected that allegation, finding that the evidence in the file clearly proved his guilt.

The applicant made a further unsuccessful extraordinary appeal before the Supreme Court of Justice, in which he argued that he had been entrapped by the police in order to extort money from him. He did not give any details as to the manner in which he had been entrapped.

THE COURT’S ASSESSMENT

5.  The applicant argued that he had been incited by the police to commit an offence which he would not have committed in the absence of such incitement. He noted that he had no criminal record and that the courts had failed to verify the manner in which the police had planned and executed the controlled purchase of drugs, whether he was considered as prone to commit such offences and whether he had been subjected to pressure by the police, the nature and extent of police involvement in the commission of the crime.

6.  The Government argued that the applicant was already known from operative information to the authorities as potentially selling drugs. The police had to use an undercover agent in order to uncover his already on‑going activity.

7.  The general principles concerning entrapment have been summarised in Matanović v.Croatia (no. 2742/12, §§ 122-35, 4 April 2017) and Akbay and Others v. Germany (nos. 40495/15 and 2 others, §§ 109-24, 15 October 2020). When faced with a plea of police incitement, or entrapment, the Court will attempt to establish whether there has been such incitement or entrapment (substantive test of incitement). If there has been such incitement or entrapment, the subsequent use of evidence obtained thereby in the criminal proceedings against the person concerned raises an issue under Article 6 § 1 (see Matanović, cited above, § 145, and Akbay and Others, cited above, § 111).

8.  In determining whether there had been entrapment, that is, whether the authorities exerted such an influence on the applicant as to incite the commission of an offence that would otherwise not have been committed, the Court will first examine whether there were objective suspicions that the applicant had been involved in criminal activity or was predisposed to commit a criminal offence (see Akbay, cited above, §§ 114-115); the procedure for initiating and carrying out the measure against the applicant, notably whether there was judicial supervision thereof; and whether the authorities or any persons acting on their behalf had “joined” an ongoing criminal activity or had subjected the applicant to any undue pressure so as to incite the commission of the offence.

9.  In the present case, the Court is not persuaded that the situation under examination falls within the category of “entrapment cases”, even prima facie. It notes the applicant’s statement in court that he had picked the plants and brought them home on his own initiative. While he claimed that this was for his personal consumption, the overall quantity found in his house (more than 1.7 kilograms of cannabis) clearly exceeded a personal use scenario, the more so that he readily agreed to sell almost half of the drugs he had at the time instead of using them himself. He was thus able to produce large quantities of the drug on short notice, from his own reserves and not having to obtain them from other persons and had in his possession many more drugs than those he had agreed to sell to C.R. (compare and contrast Teixeira de Castro v. Portugal, 9 June 1998, § 38, Reports of Judgments and Decisions 1998-IV).

10.  The applicant’s testimony in court was that a taxi driver had come to his house, had recognised the nature of the plants on his kitchen table and had immediately asked to buy some. He linked the driver’s visit with the subsequent entrapment. However, he did not claim that this person had been a police informant at the time. In any case, it was the applicant who had approached that driver and invited him into his house, the authorities becoming aware of the applicant’s activities thereafter.

11.  Moreover, the applicant has not submitted copies of any of his appeals before the courts so as to allow the Court to determine what evidence or arguments of entrapment he had advanced before the domestic courts. It follows from the judgments convicting him that he raised the argument of entrapment only in his appeal in cassation before the Supreme Court of Justice. Since the details of the complaint remain unknown, it is also unclear whether he advanced any reasons for not submitting any evidence before the lower courts. It is however apparent from his further extraordinary appeal before the Supreme Court of Justice that he advanced the argument of entrapment without providing any detail allowing the courts to properly deal with the issue. It follows that the incitement defence was not formulated clearly and/or in good time in the domestic proceedings (see Trifontsov v. Russia, no. 12025/02, § 34, 9 October 2012).

12.  In view of its findings above, the Court concludes that the applicant has not shown prima facie evidence that he may have been incited by the police to commit an offence which he otherwise would not have committed. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

13.  The applicant also complained about insufficient medical treatment during his detention, contrary to Article 3 of the Convention.

14.  The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 February 2025.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President