Information Note on the Court’s case-law No. 168
November 2013
Sepil v. Turkey - 17711/07
Judgment 12.11.2013 [Section II]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Equality of arms
Use of evidence obtained through incitement in context of an unlawful undercover operation: violation
Facts – The facts of the case were disputed between the parties. According to official records, in 2005 two undercover police officers contacted the applicant by telephone to buy heroin. After meeting at an agreed location, the officers purchased the heroin and arrested the applicant immediately afterwards. According to the applicant, he had not sold them the heroin, and the police officers had only found the drugs after searching him. In 2006 the domestic court found the applicant guilty of drug-trafficking and sentenced him to six years and three months’ imprisonment. The Court of Cassation upheld that judgment.
Law – Article 6 § 1: The Court recalled that, while the use of undercover agents could be tolerated provided that it was subject to clear restrictions and safeguards, the public interest could not justify the use of evidence obtained as a result of police incitement, as it would expose the accused to the risk of being definitively deprived of a fair trial from the outset. In the applicant’s case, the police had not confined themselves to investigating criminal activity in an essentially passive manner but had exerted such an influence on the applicant as to incite the commission of an offence that he would have otherwise not committed. Therefore, the police activity amounted to incitement to commit crime. Moreover, the police had performed the operation leading to the applicant’s arrest of their own accord, and not on the basis of a decision of a judge or public prosecutor, contrary to the legal provision regulating the appointment of undercover agents, and without any judicial supervision. As for the criminal proceedings leading to the applicant’s conviction, the trial court had ignored the applicant’s repeated objections concerning the unlawfulness of the operation and the use of evidence obtained by police incitement. It had also failed to consider substantial evidence by refusing to examine records of the applicant’s telephone conversations prior to his arrest, even though this could have proved that the police had not in fact tried to buy heroin from him. Moreover, the trial court had not tried to establish the reasons for the police operation or to determine whether the police officers had acted in compliance with domestic law. Its failure to analyse the relevant factual and legal elements, which would have helped it to establish whether there was incitement, in particular having regard to the fact that the police intervention had not complied with domestic law, had thus deprived the applicant’s trial of the requisite fairness.
Conclusion: violation (unanimously).
Article 41: EUR 4,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Khudobin v. Russia, 59696/00, 26 October 2006, Information Note 90)
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This summary by the Registry does not bind the Court.
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