Communicated on 14 February 2014
THIRD SECTION
Application no. 7600/09
Alex Fabian PĂTRAŞCU
against Romania
lodged on 23 January 2009
STATEMENT OF FACTS
1. The applicant, Mr Alex Fabian Pătraşcu, is a Romanian national, who was born in 1986 and lives in Botîrlău. He is represented before the Court by Mr E. A. Chira, a lawyer practising in Bucharest.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant, manager of a private company active in the field of bakery and milling, was approached in the course of 2006 by B.T.F., a police officer who presented himself under a fake identity, namely that of a drug consumer. Under pressure from B.T.F. the applicant agreed to help him obtain ecstasy pills. For this purpose the applicant contacted C.A.O. who agreed to bring him some pills.
4. On 19 July 2007, the applicant, B.T.F. and C.A.O. met in the parking lot of a gas station. B.T.F. was accompanied by a second undercover agent. When C.A.O. refused to sell the pills to B.T.F., the latter grabbed them and, at that moment, police officers accompanied by a prosecutor arrived at the scene and arrested the applicant and C.A.O. for drug trafficking.
5. On 22 February 2008 the Buzău County Court convicted the applicant and C.A.O. for traffic of high risk drugs and sentenced them to six years imprisonment and three years restriction of certain rights.
6. The court discharged the applicant's allegations that he had been provoked to commit the crime by an undercover agent in breach of the domestic law and the Convention by holding that the activity of the two undercover agents working on the case had been lawful.
7. The applicant appealed this decision alleging, among others, that B.T.F. acted of his own motion and did not have prior authorisation from a prosecutor in order to contact him and provoke him to commit a crime. The applicant also complained about the first instance court's decision not to hear the second undercover agent who worked on this case as well as about the decision to dismiss his request for the viewing of the video recording of the operation of 19 July 2007. The applicant also submitted that the Buzău County Court had not analysed his allegations that the operation finalised with the flagrant of 19 July 2007 was contrary to the domestic legislation and the Convention due to the fact that he was provoked to commit a crime, there were no prior suspicions that he was a drug dealer or a consumer and he did not have a criminal record.
8. On 26 May 2008 the Ploieşti Court of Appeal dismissed the applicant's appeal as ill-founded. The court briefly analysed the applicant's reasons for appeal and held that the activity of the two undercover agents had been lawful. With respect to the applicant's complaint that certain evidence had not been administered by the first instance court, the Court of Appeal held that they were not necessary to the case. The court further held that the facts of the case were clearly demonstrated by the report of the flagrant of 19 July 2007, the reports drafted by the undercover agent B.T.F., the technical expert reports as well as the transcripts of the applicant's telephone conversations and the transcripts of recordings of the conversations conducted between B.T.F. and C.A.O. on 19 July 2007.
9. The applicant filed an appeal on points of law (recurs) against this decision reiterating his allegations made on appeal.
10. On 22 October 2008 the High Court of Cassation and Justice rejected the applicant's appeal on points of law and upheld the provisions of the judgment of 22 February 2008 adopted by the Buzău County Court. The High Court held that the undercover operation had been lawfully conducted, having all prior authorisations required from the investigative prosecutor.
B. Relevant domestic law
11. The relevant provisions concerning the use of undercover agents, namely the provisions of the Code of Criminal Procedure and of Law
no. 143 of 2000, are set out in Constantin and Stoian v. Romania
(nos. 23782/06 and 46629/06, §§ 33-34, 29 September 2009).
COMPLAINT
12. The applicant complains under Article 6 § 1 of the Convention that he had not had a fair trial in that he had been incited by the undercover agent to commit an offence of which he was subsequently convicted. He alleges that the domestic courts convicted him on the basis of the statement of the undercover agent, who had acted of his own initiative without any supervision by the relevant authorities. He further submits that the domestic courts also failed to analyse his plea of incitement and rejected without reasoning the evidence he proposed in his defence.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular:
(a) Was the applicant incited by the undercover agent to commit the offence of drug trafficking?
(b) Prior to carrying out the test purchase of 19 July 2007, did the national authorities have a good reason to suspect the applicant of any ongoing criminal activity or to believe that he was predisposed to commit similar offences?
(c) What were the reasons for and the purpose of the planned test purchase in the present case? Was the procedure authorising it clear and foreseeable? Was the test purchase carried out in the present case subject to any judicial control or/and independent supervision?
(d) Was the applicant afforded adequate procedural safeguards with respect to his plea of incitement raised before the national courts?
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