Communicated on 12 May 2015
FIRST SECTION
Application no. 13573/14
Mohamed TEPRA
against Austria
lodged on 8 April 2014
STATEMENT OF FACTS
The applicant, Mr Mohamed Tepra, is a Syrian national who was born in Aleppo and is currently detained in Sonnberg Prison in Hollabrunn.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 April 2014 the Klagenfurt Regional Court (Landesgericht Klagenfurt, “the Regional Court”) convicted the applicant of importing and delivering drugs pursuant to Article 28a of the Drugs Act (Suchtmittelgesetz) and sentenced him to 5 years of imprisonment. The applicant had acted together with two co-defendants, who also were convicted.
On 14 October 2012 the applicant had imported 3.8 grams of cocaine from Italy to Austria and delivered it as a sample to an undercover police man who posed as a buyer. On 16 October 2012 the applicant had imported 2,510.4 grams of cocaine and 55.4 grams of cannabis resin and delivered the cocaine to the same undercover policeman.
While the applicant confessed to importing and delivering the drugs, with regard to events that led to the drug deal between the applicant and the undercover police officer, the accounts of the applicant and the findings of the domestic courts differ:
1. The applicant’s account of the events leading up to the drug deal
The applicant, who lived in Madrid at the time, states that in the end of January 2012, he wanted to buy a fake residence permit for his nephew. To this end, a friend introduced him to a person in Vienna called “Mike”, who later turned out to be a police informant (Vertrauensperson). For various reasons they never reached an agreement on the documents. About four months later, however, Mike contacted the applicant again and told him that he was interested in buying cocaine. The applicant maintains that he refused to participate in any drug deal, but Mike persistently called him during the following month, trying to convince him to agree to the deal. Because his economic situation was very difficult, the applicant eventually agreed to try to procure cocaine. He alleges that Mike subsequently called him almost every day asking for the drugs. At the end of September, the applicant finally told him that he might have found some cocaine sellers in Italy. The following day, the applicant was contacted by “Josef”, the alleged buyer who was an undercover policeman. Josef told the applicant that he was very interested in buying the cocaine and that he had enough money at his disposal. The applicant asked Josef to go to Italy to pick up the cocaine, but Josef refused. Instead, he asked the applicant to bring it to Austria. During a meeting on 14 October 2012 Josef said he would be interested in buying 10 kilograms of cocaine. They agreed on meeting again two days later, as Josef claimed that he needed time to get the money. On 16 October 2012 the applicant was arrested in possession of 2,510.4 grams of cocaine and 55.4 grams of cannabis resin.
During the subsequent investigation, the applicant repeatedly asked the investigating judge to secure the phone records of his contact with Mike in order to prove that the initiative had mainly come from Mike who had frequently contacted him.
2. The findings of the Regional Court regarding the events leading up to the drug deal
The Regional Court found that at the beginning of September 2012 contact was established between a police informant alias “Mike” and the applicant. During the court proceedings it could not be ascertained who had initiated the contact. The court found it established that during their first conversation the applicant had asked Mike if he knew a buyer for a large amount of cocaine, to which Mike replied that he would ask around. On 11 September 2012 Mike contacted an undercover agent alias “Josef” in order to inform him about the offer. On 1 October 2012 the applicant called Mike and told him that he wanted to speak to the buyer, as he had 5 kilograms of cocaine to sell. In a subsequent phone conversation, Josef and the applicant agreed to meet in person in Austria as Josef was not willing to travel to Italy. They met on 14 October 2012 in Villach where the applicant gave Josef 3.8 grams of cocaine as a sample. The applicant said that for the moment he only had 3 kilograms to offer, but in the future he could secure the delivery of 10 kilograms of cocaine every two weeks. He also offered to sell cannabis. Josef said that he also was interested in buying up to 100 kilograms cannabis, but that he preferred closing the cocaine deal first so that they agreed on 3 kilograms of cocaine of 80 percent purity for a kilo price of 40,000 euros (EUR).
On 16 October 2012 the applicant came to Villach in order to hand over 2,510.4 grams of cocaine to Josef. The substance was tested by a second undercover policeman participating in the operation. Because the test result was positive, the applicant and his co-perpetrators were arrested.
3. The proceedings before the Regional Court
On 5 February 2013 the trial started. However, the phone records concerning the applicant’s contact with Mike had not been obtained because of the limited time during which phone records are saved by phone companies (6 months), even though the applicant had repeatedly requested the court to secure them. The phone records were eventually obtained at the end of the proceeding, however covering only a part of the relevant time frame, because the records of the beginning of the contact between the applicant and Mike had already been deleted. The records only covered the time frame of 1 to 16 October 2012, therefore not including the period of September when the contact was established.
When questioned as witness by the court, the head of the Graz Undercover Agents Office (Verdeckte Ermittler Büro, which belongs to the Federal Criminal Police Office (Bundeskriminalamt)) stated that the undercover operation was not covered by a judicial order, nor by an order of the Public Prosecutor, because the police had considered it to be covered by Article 131 of the Code of Criminal Procedure.
On the second day of the trial, the police informant and the two undercover police officers who posed as the buyer and participated in the drug deal – were heard in camera. Only the defence attorney was present at the questioning, not the applicant. The request of the applicant to be present was rejected by the Court in order to protect the witnesses’ identities.
The Regional Court based its conviction on the testimony of the two undercover policemen which it considered credible and who had directly been involved in the deal. Regarding the police informant Mike, the court held that even though it was aware that he had a previous criminal record and did receive payment for his activities as an informant, it still found him to be a credible witness because his accounts were widely confirmed by the objective factual circumstances of the case.
The court further found that there had been no unlawful incitement by the police informant or the police even though it could not be established who had initiated the contact, the applicant or the police informant. It also found that the phone records that could not be obtained anymore were not of relevance as these records did not reflect the content of the conversations but only showed who called whom, therefore not being able to prove whether the police informant had exercised any pressure on the applicant. The decisive element was rather the fact that the applicant clearly disposed of a source of supply regarding a substantial amount of drugs.
When fixing the sentence, the Regional Court considered as mitigating factors the lack of a criminal record of the applicant and his partial confession. His leading role in the transaction, the facts that two co‑perpetrators were involved, the high quantity of illegal substances, and the fact that he had committed two crimes were considered as aggravating factors.
4. The appeals proceedings
On 27 June 2013 the applicant, represented by counsel, lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against sentence (Berufung). In his plea of nullity, he asserted that the testimony of the police informant and the undercover police officer were contradictory regarding the establishment of the contact. In his statement, the undercover police officer Josef had said that Mike had informed him about the applicant in September 2012, while Mike conceded during the trial that he had already met the applicant in January and March 2012. Therefore, Mike was not a credible witness in the applicant’s view. Moreover he also tried to conceal some of the phone numbers through which he got in contact with the applicant, and the applicant only agreed to supply drugs after intense pressure from Mike’s side. The applicant argues that these facts demonstrated that there had been an unlawful incitement. In his appeal against sentence, the applicant complained inter alia that the Regional Court had not taken into account that the offences had been prompted by the police informant and the undercover agent as a mitigating factor in its sentencing.
On 5 November 2013 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s plea of nullity. It found that the Regional Court had argued convincingly that the police informant had merely acted in a passive manner and therefore concluded that there was no violation of Article 6 of the Convention. The Supreme Court subsequently transferred the matter to the Graz Court of Appeal (Oberlandesgericht Graz) to decide on the appeal against sentence.
On 18 December 3013 the Graz Court of Appeal, referring to the reasoning of the Regional Court, dismissed the applicant’s appeal against sentence and confirmed the Regional Court’s finding that there had been no police incitement. Consequently, it did not reduce the applicant’s sentence. It held that the alleged contradictions could have been raised before of the Regional Court and stressed that the phone records would not support the applicant’s claim of an entrapment as they did not reflect the contents of the conversations. The judgement was served on the applicant’s counsel on 6 February 2014.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure read as follows:
Article 131
“(1) Undercover investigations are permitted if they appear necessary for the investigation of a criminal offence.
(2) A systematic undercover investigation, stretching over a longer period of time, is only permitted if the investigation concerning an intentional crime punishable by imprisonment of a minimum of one year, or the prevention of a criminal offence planned within the framework of a terrorist group or a criminal organisation (Articles 278 to 278b of the Criminal Code) would otherwise be significantly impeded. Insofar as this is imperative for the investigation or prevention, it may also be permitted to produce documents faking the identity of criminal police staff, and to use them in legal relations for the fulfilment of investigation purposes (pursuant to Article 54a of the Police Security Act).
(3) The undercover investigator is to be instructed and regularly monitored by the criminal police. His mission and its specific circumstances as well as information and statements obtained through him shall be registered in a report or official memorandum (Amtsvermerk), provided they might be relevant for the investigation.”
Article 132
“The realisation of a fictitious transaction shall be permitted if the investigation of a criminal offence or the seizure of objects or assets that originate from a criminal offence or that face the risk of confiscation or forfeiture would otherwise be significantly impeded. Under these preconditions, it shall also be permitted to contribute to a fictitious transaction realised by third parties.”
Article 133
“...
(3) The criminal police may conduct on its own surveillances under Article 130 § 1, undercover investigations under Article 131 § 1 as well as fictitious transactions under Article 132 concerning the seizure of drugs or counterfeit money. The conclusion of other fictitious transactions, as well as surveillances under Article 130 § 3 and undercover investigations under Article 131 § 2 are to be ordered by the Public Prosecutors Office.
...”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that the proceedings had been unfair in that the offences of which he was convicted for would not have taken place without the authorities’ unlawful incitement.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant induced by the police informant into committing the offences of importing and delivering drugs?
2. Was the undercover operation in accordance with the relevant provisions under Austrian law, given that it was ordered by the same body that carried out the investigation and without having requested a judicial order or an order by the Public Prosecutor?
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