Communicated on 28 May 2019
FIFTH SECTION
Application no. 54664/16
Vladimir JEVTIC
against Austria
lodged on 13 September 2016
SUBJECT MATTER OF THE CASE
The applicant was convicted of drug trafficking offences. The national courts found that the applicant had been unlawfully incited to commit the offences and consequently mitigated his sentence. He complains under Article 6 § 1 of the Convention that the criminal proceedings against him had been unfair, in particular that the mitigation of his sentence did not constitute sufficient redress for the unlawful incitement. Relying on the case Furcht v. Germany, (no. 54648/09, 23 October 2014), he argued before the Supreme Court that the evidence obtained through incitement should have been excluded at trial. He complained that his conviction following the entrapment by State authorities had thus violated Article 6 § 1 of the Convention.
QUESTIONS tO THE PARTIES
1. Did the applicant exhaust all domestic remedies that offered reasonable prospects of success and were accessible and capable of providing redress in respect of his complaints? In particular, would a request during the trial hearings to have the evidence, which had been obtained through unlawful incitement, excluded from the trial, and a subsequent plea of nullity pursuant Article 281 § 1 (4) of the Code of Criminal Procedure to the Supreme Court have constituted an effective remedy, in the light of the Supreme Court’s constant jurisprudence at that time relating to the consequences of unlawful police incitement (mitigation of the sentence rather than exclusion of the evidence from trial)? Or was it sufficient for the purposes of the rule of having to exhaust domestic remedies that the applicant based his plea of nullity (Nichtigkeitsbeschwerde) to the Supreme Court on the case Furcht (cited above)?
2. Having regard, in particular, to the Court’s judgment in the case of Furcht v. Germany (cited above) and the cases cited therein, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 of the Convention? In particular, did the mitigation of the sentence as a result of the finding of unlawful incitement constitute adequate redress?
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