FIFTH SECTION
DECISION
Application no. 29015/18
Sergiu RUSU
against the Republic of Moldova
The European Court of Human Rights (Fifth Section), sitting on 13 March 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. 29015/18) 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 9 June 2018 by a Moldovan national, Mr Sergiu Rusu (“the applicant”), who was born in 1985, is detained in Soroca and was represented by Mr S. Muntean, a lawyer practising in Chisinau;
the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr D. Obadă;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the unfairness of criminal proceedings against the applicant in breach of Article 6 § 1 of the Convention, namely the alleged incitement by the authorities to commit an offence which the applicant would not otherwise have committed.
2. D., an undercover officer from the Department for Combating Corruption and Organised Crime of the Ministry of Internal Affairs (“the DCCOC”) received operative information about possible drug dealing. On 29 October 2008 he went to the apartment of P., accompanied by an acquaintance of P.’s. They asked P. whether he knew someone who could sell them cannabis. P. immediately called A., who came some 15 minutes later together with N. and sold D. 27 grams of cannabis. D. asked A. whether he could buy a larger quantity, to which he agreed.
3. On 7 November 2008 D. called A.’s number to discuss the future deal, but another person answered the telephone and said that he knew about the deal and could discuss it. Subsequently D. declared that the voice on the telephone belonged to the applicant. They agreed to meet on 9 November 2008 in order to make the deal.
4. On 9 November 2008 D. again called A.’s number, but no one answered the telephone and no one returned the call. D. called again on 12 November 2008 and agreed with A. to meet the next day to make the purchase.
5. On 13 November 2008 A. came to the meeting together with N. and the applicant. A. and N. entered D.’s car and sold D. 1,200 grams of cannabis, while another undercover officer stayed nearby with the applicant. Thereafter all three suspects were arrested.
6. On 2 December 2010 the applicant was convicted of drug dealing. The court increased his prison sentence in view of his earlier conviction for possessing drugs without the intent of selling them. The higher courts upheld his conviction. In response to his argument about incitement to commit the offence, made on appeal, the Chișinău Court of Appeal found no evidence that the applicant had been the victim of entrapment, notably because the recorded conversations between undercover agents and the suspects on 7 and 12 November 2008 did not reveal any incitement to commit the crime. In a final judgment of 13 December 2017 the Supreme Court of Justice upheld the lower courts’ judgments.
THE COURT’S ASSESSMENT
7. The applicant mainly complained, under Article 6 of the Convention, that he had been incited by the police to commit an offence which he would not have otherwise committed.
8. 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).
9. 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.
10. In the present case, it is noted that, until the applicant appeared at the meeting of 13 November 2008, the authorities were unaware of his involvement. D. has only contacted with A., the applicant having allegedly picked up A.’s phone on one occasion on 7 November 2008. Both that conversation and another one on 12 November 2008 were recorded and did not show any signs of incitement, as established by the domestic courts. It follows that the applicant was at no point incited to commit an offence.
11. It is true that a person can also be subjected to entrapment if he or she was not directly in contact with the police officers working undercover, but had been involved in the offence by an accomplice who had been directly incited to commit an offence by the police (compare Lalas v. Lithuania, no. 13109/04, §§ 41 et seq., 1 March 2011, and Akbay, cited above, § 117). The Court therefore needs to determine whether A. or N. were entrapped by the police before they involved the applicant.
12. It is noted that the authorities did not have any information about the involvement of either A. or N. in any criminal activity and notably in drug dealing, but they did not approach them directly. The only “operative information” available was that P. could know persons dealing in drugs. D., an undercover agent, first approached P, who knew he needed to call A. if he wanted to obtain drugs. Very shortly thereafter A. and N. came to the meeting with a sample of drugs and discussed delivering a larger quantity to D. This confirms that P. had probably dealt with A. before and also that A. and N. were able to supply drugs on a very short notice. The latter is an important element confirming that they were in possession of the drugs and were ready to sell it immediately, which suggests that they may have already been dealing in drugs before the events of the present case. Moreover, all the participants were arrested as soon as a larger quantity of drugs was supplied on 13 November 2008, which means that the police have not provoked the commission of a larger-scale crime than the suspects had planned, by artificially extending the operation to additional or increasingly larger quantities (contrast Grba v. Croatia, no. 47074/12, § 101, 23 November 2017).
13. The Court finds that there is no evidence in the file that A. or N. was incited to commit an offence which they would not have committed otherwise. On the contrary, the materials in the file point to the fact that they were already involved in illegal drug dealing. Since A. and N. were not provoked by the police, neither could the applicant have indirectly been incited to commit the crime.
14. 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.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 3 April 2025.
Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President