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THE FACTS
The applicant, Mr Modesto Sequeira, is a Portuguese national born in 1947. He is currently being held at Vale de Judeus Prison (Portugal).
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant served a prison sentence in Spain between 1989 and 1992 for drug trafficking. He returned to Portugal on completion of his sentence but was placed in pre-trial detention in connection with other proceedings in 1994.
During his detention in Montijo Prison, he met A., who was allegedly linked to drug-trafficking circles. A. informed the applicant that he could supply him with transport, especially boats, should he decide to organise a drug-trafficking operation.
Following his release in 1994, the applicant travelled to Brazil, Colombia and Venezuela, countries in which he claims to have had business dealings (property sales and meat exports).
The applicant returned to Portugal in the summer of 1996. He then resumed contact with A., who had been released in the meantime.
According to the facts established by the Benavente Criminal Court in a judgment of 22 February 1998 (see below), subsequent events were as follows.
In September 1996 the applicant asked A. to find a boat so that he could import a substantial quantity of cocaine from Brazil. The applicant and A. travelled to Brazil between November and December 1996 in order to finalise the details of the cocaine shipment.
Thereafter A. contacted C., the owner of a boat, with a view to arranging for the drugs to be transported to Portugal. It emerges from the case file that C. had already collaborated on several occasions with the criminal-investigation department in drug-trafficking cases. He persuaded A. to collaborate with the police too. The applicant was unaware of this. The criminal-investigation department and the public prosecutor's office were informed.
A. introduced C. to the applicant in August 1997. The latter paid C. an unspecified sum of money as remuneration for his services.
At the end of August C.'s boat, on which A. and an undercover member of the criminal-investigation department were also present, took delivery of a consignment of drugs from another boat off the coast of Brazil. C. then sailed the boat to the Portuguese port of Figueira da Foz, where the drugs were unloaded and stored in a warehouse.
On 29 September 1997 A. transported the drugs by car to a farm in Salvaterra de Magos that the applicant had purchased in the meantime. The drugs were unloaded and stored in the farm. After A.'s departure, the criminal-investigation department, which had been monitoring the entire operation, arrested the applicant and seized 1,833 kg of cocaine.
Unlike A. and C., who were not prosecuted, the applicant was accused of drug trafficking and criminal association.
In a judgment of 22 December 1998, the Benavente Criminal Court found the applicant guilty of the offences and sentenced him to nineteen years' imprisonment. The court established the facts of the case primarily on the basis of statements by A. and C. and the members of the criminal-investigation department who had taken part in the operation. All of these witnesses appeared at the trial. The court also based its decision on documents found in the applicant's possession, containing several names and telephone numbers and a list of sums of money. With regard to the applicant's allegations that he had been the subject of incitement, the court emphasised that A. and C. had not acted as agents provocateurs but as undercover agents. According to the court, their activities had been confined to informing the criminal-investigation department of the operation's progress and they had never incited the applicant to commit an offence that would not otherwise have been committed.
The applicant appealed against this judgment to the Evora Court of Appeal. In a judgment of 12 July 2000, the Court of Appeal rejected the applicant's submission concerning A.'s and C.'s conduct. Referring to Teixeira de Castro v. Portugal (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, pp. 1452 et seq.), the Court of Appeal emphasised that A. and C. had acted as undercover agents and not as agents provocateurs, and that the evidence in issue was therefore admissible. It did however quash the applicant's conviction on the charge of criminal association and reduced his sentence to ten years' imprisonment.
The applicant appealed on points of law. In a judgment of 13 December 2000, the Supreme Court dismissed the submission concerning A.'s and C.'s conduct. Like the lower courts, the Supreme Court held that they had acted as undercover agents and not as agents provocateurs. Nonetheless, it considered that the particular circumstances of the case, notably the undercover agents' intervention, warranted a reduction of the applicant's sentence to nine years' imprisonment.
The applicant then requested clarification (aclaração) of this judgment in respect of the distinction between undercover agents and agents provocateurs. However, the Supreme Court, in a judgment of 7 February 2001, dismissed this request, holding that there was nothing to be clarified.
B. Relevant domestic law and practice
The prevention of drug trafficking is governed by Legislative Decree no. 15/93 of 22 January 1993, as amended by Law no. 45/96 of 3 September 1996.
Article 59 of this legislative decree provides that a criminal investigation agent or a third party acting under the supervision of the criminal-investigation department who, in the course of preliminary inquiries and without revealing his identity, accepts an offer for or transports narcotics or other psychotropic substances shall not be liable to prosecution in respect of such conduct. These persons' actions require authorisation from the relevant judicial body, to which they must report.
Article 126 of the Code of Criminal Procedure states:
“1. Evidence obtained through torture, the use of force or any kind of physical or psychological duress shall be invalid and inadmissible.
2. Evidence obtained by any of the following means shall be deemed to have been obtained by physical or psychological duress even where the victim has consented thereto:
(a) ill-treatment, assault, any other method, hypnosis, cruelty or deceit that vitiates free will or freedom of choice;
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4. Where evidence is obtained by means that constitute a serious criminal offence under this Article, it may be used only for the purpose of prosecuting those responsible for obtaining it in that way.”
Teixeira de Castro, cited above, contains the following description of the current Portuguese case-law and legal theory in this matter (p. 1460, §§ 26-27:
“Subject to certain conditions, the Supreme Court accepts the use of 'infiltrators' in the fight against drug trafficking (judgments of 12 June 1990, BMJ no. 398, p. 282; 14 January 1993, Col. Jur. (STJ), 1993-I, p. 270; 5 May 1994, Col. Jur. (STJ), 1994-II, p. 215 ...; ... 22 June 1995, Col. Jur. (STJ), 1995-II, p. 238; 6 July 1995, Col. Jur. (STJ), 1995-II, p. 261; and 2 November 1995, Col. Jur. (STJ),1995-III, p. 218).
Legal writers in Portugal (and in other European countries) draw a distinction, under the generic term of 'infiltrators', between an 'undercover agent' and an 'agent provocateur'. The former is someone who confines himself to gathering information, whereas the latter is someone who actually incites people to commit a criminal offence. In Portugal, under the law in force at the material time, legal experts regarded evidence obtained by 'undercover agents' as admissible, but were more reserved about evidence obtained by 'agents provocateurs' (see, for example, Costa Andrade, Sobre as proibições de prova em processo pènal, Coimbra, 1992, pp. 220 et seq., and A.G. Lourenço Martins, Droga. Prevenção e tratamento. Combate ao tráfico, Coimbra, 1984, pp. 154 et seq., and, more recently, 'Droga e direito', Aequitas, Editorial Noticias, 1994, pp. 278 et seq.).”
Following Teixeira de Castro, several judgments by the Supreme Court and decisions by courts of appeal and courts of first instance established that evidence obtained through the actions of an agent provocateur was inadmissible under Article 126 § 2 (a) of the Code of Criminal Procedure.
COMPLAINT
Relying on Article 6 § 1 of the Convention, the applicant complained that he had not received a fair trial in that he had been tried and convicted following incitement by third parties acting on behalf of the police.
THE LAW
The applicant complained that he had not received a fair trial on account of the role played in his conviction by two persons acting as agents provocateurs. He alleged that he had been incited to commit an offence which would not have occurred without their intervention.
He relied on Article 6 § 1 of the Convention, which provides, inter alia:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
At the outset, the Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997-III, p. 711, § 50). In this context, it is not for the Court to determine whether certain items of evidence were obtained unlawfully, but only to examine whether the “unlawfulness” in question resulted in the infringement of another right protected by the Convention (see Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V).
The Court has already been required on several occasions to rule on the involvement of undercover agents and agents provocateurs in proceedings. In this respect, the following principles have been established in its case-law.
The Convention does not preclude reliance, at the investigation stage of criminal proceedings and where the nature of the offence so warrants, on sources such as anonymous informants. However, the subsequent use of their statements by the court of trial to found a conviction is a different matter (see, mutatis mutandis, Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166, p. 21, § 44, and Teixeira de Castro, cited above, pp. 1462-63, § 35).
The use of undercover agents must be restricted and safeguards put in place even in cases concerning the fight against drug trafficking. Although the rise in organised crime undoubtedly requires that appropriate measures be taken, the right to a fair administration of justice nevertheless holds such a prominent place in a democratic society (see Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 15, § 25) that it cannot be sacrificed for the sake of expedience. The general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement (see Teixeira de Castro, cited above, p. 1463, § 36).
Lüdi v. Switzerland (judgment of 15 June 1992, Series A no. 238) concerned a sworn police officer whose involvement was known to the investigating judge; in that case, the Swiss authorities, acting on information from the German police, had opened a preliminary investigation. The activities of the police officer in question had not exceeded those of an undercover agent. However, the Court found that the right to a fair hearing had been subject to limitations that were incompatible with Article 6 §§ 1 and 3, in that the police officer in question had not been heard by the trial courts and the applicant had not had an opportunity to question him and to cast doubt on his credibility.
Where the activity of the agents in question appears to have instigated the offence and there is nothing to suggest that it would have been committed without their intervention, it goes beyond that of an undercover agent and may be described as incitement. Such intervention and its use in criminal proceedings may result in the fairness of the trial being irremediably undermined (see Teixeira de Castro, cited above, pp. 1463-64, §§ 38-39).
In the present case, it has been established by the domestic courts that A. and C. began to collaborate with the criminal-investigation department at a point when the applicant had already contacted A. with a view to organising the shipment of cocaine to Portugal. Furthermore, from that point on, the activities of A. and C. were supervised by the criminal-investigation department, the prosecution service having been informed of the operation. Finally, the authorities had good reasons for suspecting the applicant of wishing to mount a drug-trafficking operation. These factors establish a clear distinction between the present case and Teixeira de Castro, and show that A. and C. cannot be described as agents provocateurs. As the domestic courts pointed out, as in Lüdi, their activities did not exceed those of undercover agents.
The Court is also required to consider whether the involvement of A. and C. in the operation, even if they were acting as undercover agents rather than agents provocateurs, nevertheless undermined the fairness of the trial. In this respect, it notes that A. and C. took part in the proceedings and were examined at a hearing in public by the Benavente Criminal Court. The applicant had an opportunity to question them and to cast doubt on their credibility and that of the member of the criminal-investigation department who had also participated, as an undercover agent, in the cocaine shipment. Finally, the court had not based its findings exclusively on the undercover agents' statements, but also on the statements of other members of the criminal-investigation department who had taken part in the operation and on documents found in the applicant's possession. Finally, it is not without relevance to note that, while not a decisive factor, the Supreme Court took the undercover agents' actions into consideration in deciding to reduce the sentence that had been imposed on the applicant by the lower courts.
Taking all of these elements into account, the Court finds that the applicant was able to exercise his right to due process and that his trial was fair.
Accordingly, there has been no violation of Article 6 § 1 of the Convention. The application is consequently manifestly ill-founded and must be rejected pursuant to Article 35 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
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