SECOND SECTION
DECISION
Application no. 81258/17
Constantin PRIGUZA
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 4 June 2024 as a Committee composed of:
Jovan Ilievski, President,
Diana Sârcu,
Gediminas Sagatys, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 81258/17) 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 20 November 2017 by a Moldovan national, Mr Constantin Priguza (“the applicant”), who was born in 1956, lives in Strășeni and was represented by Ms D. Străisteanu, a lawyer practising in Chişinău;
the decision to give notice of the complaint concerning incitement to commit an offence to the Moldovan Government (“the Government”), represented by their Agent at the relevant time, Mr O. Rotari, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged incitement of the applicant to commit an offence which he otherwise would not have committed.
2. The applicant was the Mayor of Strășeni. In July 2009 he signed a contract with a private company headed by S. for the repair and extension of the urban water pipe system. S.’s company completed the works and then asked to be paid 332,000 Moldovan lei (MDL, the equivalent of approximately 21,000 euros (EUR) at the time). According to a number of testimonies, the applicant opposed the payment of that sum, and asked for expert reports to verify whether the expenses had been excessive. On 10 July 2010 the Strășeni local council voted to allocate that sum to pay S.’s company. However, the applicant refused to release the money until 15 November 2010.
3. In the meantime, the applicant lodged a complaint with the Centre for Fighting Economic Crime and Corruption (CFECC) against S. for unlawfully taking money from city residents in order to connect them to the water pipe system. As a result, S. was fined MDL 400 (EUR 22) for an administrative offence.
4. On 6 December 2010 S. filed a complaint with the CFECC, stating that the applicant had created a difficult situation for his company by refusing for a long time to sign off the money transfer. He added that the applicant had alluded that a solution could be found if S. paid back to the applicant a certain percentage of the sum owed to the company. When S. agreed to pay on 15 November 2010, the applicant immediately signed off the transfer.
5. On 6 December 2010 the CFECC started a criminal investigation into this allegation, referring to S.’s complaint and the documents mentioned in paragraph 2 above. On 8 December 2010, as well as on 6 and 12 January 2011, it obtained the authorisation of an investigating judge to tap the applicant’s work and personal cell phones, as well as to secretly record meetings between S. and the applicant.
6. On 14 December 2010 S. left MDL 10,000 (EUR 560) near a garage belonging to the applicant, allegedly upon his instructions. On 24 January 2011 S. went to the applicant’s office, where the applicant told him to put the money into a folder, gave him the keys from his office car and instructed him where to leave the folder in the car. All this was recorded by S., including the moment of leaving the folder in the car, when he commented that it contained some medical documents in the applicant’s name. S. returned the keys to the applicant, who then drove the car home. During a search of the applicant’s home on the same day, the relevant folder, containing the medical documents in his name and EUR 4,000 of specially marked bills, was found behind the applicant’s house.
7. On 30 September 2014 the first-instance court convicted the applicant for asking and accepting a bribe and for negligence in carrying out his duties, namely signing property documents for several people containing false information. The court relied inter alia on the statements of a number of witnesses, including S., notably concerning the completion by S.’s company of the public works and the delay in the applicant’s release of the sum of money earmarked by the local council for paying that company, expert reports concerning the specially marked money bills, and secret recordings of meetings between S. and the applicant on five different occasions between 14 December 2010 and 24 January 2011, when he was arrested. In respect of the argument about entrapment, the court “carefully examined all the evidence in the file”, because any evidence obtained as a result of entrapment had to be excluded. However, it found that the applicant’s acts played the determining role in the events, which he had set into motion, while the authorities only joined his ongoing criminal activity.
8. That judgment was partly upheld by the Court of Appeal on 22 December 2016, the court acquitting the applicant of other offences which had not been proven. It found that the applicant had not been entrapped but had solicited the money from S., as confirmed by the audio recordings.
9. By a final decision of 14 June 2017 the Supreme Court of Justice upheld the lower court’s judgment.
10. The applicant complained under Article 6 § 1 of the Convention that he had been incited by S., acting under the authorities’ guidance, to commit an offence which he would not have committed otherwise, and that the courts relied on evidence obtained as a result of such entrapment to convict him.
THE COURT’S ASSESSMENT
11. The applicant argued that he had been the victim of entrapment by S. and the CFECC.
12. 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).
13. 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.
14. The Court notes that prior to the complaint by S. the applicant was never suspected of participation in any criminal activity. However, the investigating authority only became involved in the present case when S. had complained that he had been forced to pay a bribe to the applicant. That authority thus reacted to this complaint by gathering evidence of the alleged bribery. Moreover, when starting the criminal investigation, the prosecutor in charge referred to specific documents (see paragraph 2 above) proving that S.’s company had done works and had not been paid for a long time, despite the decision of the local council to issue the relevant sum of money. The prosecutor therefore did not simply rely on an unconfirmed complaint by S. but also on documents reasonably supporting that complaint. It follows that the authorities did not start recording the applicant’s acts without an objective suspicion that the applicant was already involved in illegal activity, but reacted to specific accusations supported by specific evidence concerning the applicant’s refusal to carry out his duties and his alleged request for a bribe.
15. It is also important that, before starting the special investigation techniques, the investigating authorities obtained the relevant court authorisation. There was a clear procedure in domestic law for authorising such techniques, involving judicial supervision (compare also Akbay, cited above, § 118), and that procedure was followed in this case.
16. The Court must finally examine whether the authorities or any persons acting on their behalf had “joined” an ongoing criminal activity of the applicant or whether the applicant was subjected to undue pressure to commit the offence (compare Akbay, cited above § 116). In this respect, it takes note of the applicant’s reliance on several elements proving, in his opinion, his entrapment. In particular, he argued that S. wanted to take revenge for the fine he had to pay and had staged the entire story with the help of a CFECC officer. However, the secret recordings as described by the domestic courts show no insistence on the part of S. for the applicant to take a sum of money, but actual negotiations in which the applicant discussed the sum to be paid.
17. In addition, the applicant argued that he had never asked for any money, as allegedly confirmed by S. himself. However, S. clearly indicated that the applicant first caused a dire situation for his company by delaying payment and then alluded that the solution was for S. to pay a certain percentage of the money owed back to the applicant. The recordings of the meetings between S. and the applicant, as described in the court decisions, clearly show both the applicant’s intention to obtain the money and negotiations as to the exact sum to be paid, rather than any offer or insistence on the part of S. While the applicant disputed the exact contents of the recordings, he did not submit a copy thereof, nor of any of the six transcripts examined by the domestic courts. Therefore, the Court has no reason to cast doubt on their content as described by the domestic courts.
18. The applicant further argued that it had been pointless for him to extort any money once the transfer order had been signed by him on 15 November 2010. However, it is apparent from the file that S.’s company had several contracts with the local authorities and that the applicant could cause problems in any of them had the deal reached on 15 November 2010 not been observed. In fact, the recorded discussions culminating with the applicant’s arrest on 24 January 2011 dealt with several such contracts and the sum of EUR 4,000 was an overall payment.
19. The Court concludes that the authorities had “joined” an ongoing criminal activity of the applicant and did not subject him to undue pressure to commit the offence. The applicant was thus not entrapped by the authorities or any person acting under their supervision. Accordingly, the subsequent use in the criminal proceedings against the applicant of the evidence obtained by the undercover measure does not raise an issue under Article 6 § 1 of the Convention.
20. In view of the foregoing, the Court finds that this application is manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 June 2024.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President