Communicated on 19 May 2014
THIRD SECTION
Application no. 64020/09
Lucian Cătălin VOINEA
against Romania
lodged on 19 November 2009
STATEMENT OF FACTS
The applicant, Mr Lucian Cătălin Voinea, is a Romanian national, who was born in 1976 and lives in Constanța. He is represented before the Court by Mr H. Petria-Mitran, a lawyer practising in Craiova.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 19 July 2007 an investigation was initiated in connection with a network of drug dealers.
The police division responsible for the fight against organised crime and drug trafficking (“the police”) sought authorisation from the prosecutor’s office to use an undercover agent known under the code name “Popescu Ion” in order to identify the members of the network. The interception and registration of the applicant’s phone conversations was also authorised.
On an unspecified date, the undercover agent had approached the applicant, asking him to buy from him cannabis or any other drug. The applicant had agreed but informed him that he had to get the drugs from a supplier as he was not in possession of any.
On 19 July 2007 the applicant met the undercover agent and sold him 1.59 grams of cannabis, 0.23 grams of hashish and a cigarette containing cannabis. The meetings between the applicant and the undercover agent were recorded.
Upon the undercover agent’s request they met again on 25 July 2007. The undercover agent asked for more drugs. The applicant informed him that he had no drugs but promised to find a supplier. Subsequently he bought two pills of ecstasy from C.B.S. and on 27 July 2007 he met the undercover agent and sold him the pills.
As the undercover telephoned again requesting more drugs the applicant bought three pills of ecstasy from N.F. and gave them to the undercover agent on 2 August 2007.
On 9 August 2007 the applicant provided the undercover agent with 0.43 grams of cannabis.
On 17 October 2007 the police officers acting in connivance with the undercover agent caught the applicant red-handed, while he was selling 7.54 grams of cannabis to the undercover agent. The applicant also had in his possession five small packages of cannabis and a small envelope containing hashish.
The applicant was immediately remanded in police custody. His home was searched on the same day and the police officers found 350 grams of cannabis.
Five other co-defendants (allegedly members of the same network of drug dealers) were taken into police custody on the same day. Arrest warrants were issued in their name and their pre-trial detention for thirty days was ordered on 18 October 2007 by the Dolj County Court. Their detention was subsequently extended by the court every thirty days.
During the criminal investigation the applicant denied his involvement in drug trafficking insisting that he was only a drug consumer.
On 12 September 2007 the prosecutor’s office attached to the High Court of Cassation and Justice issued an indictment concerning the applicant and five other co-accuseds, and the case was registered with the Dolj County Court.
By a judgment of 5 September 2008 the Dolj County Court convicted the applicant of drug trafficking under Article 2 of Law 143/2000 and sentenced him to five years imprisonment. It based its findings on the statements given by the co‑defendants and the undercover agent and the transcripts of the registered phone conversations. It held that the applicant’s defence according to which he had acted at the undercover agent’s incitement could not be retained as the undercover agent did not force the applicant to sell him drugs. He just called the applicant several times and asked him to sell him different drugs. Afterwards they met and the applicant sold him drugs.
The applicant appealed, complaining inter alia that the undercover agent had overstepped the legitimate limits of investigation by influencing and inciting him to sell drugs. He also contended that he had been only a drug addict and not a drug dealer. He stressed that except from the recordings of his meetings with the undercover agent there had been no evidence that he had performed any other transactions with drugs.
On 19 November 2008 the Craiova Court of Appeal allowed the applicant’s appeal and partly set aside the judgment of the first-instance court. It reduced the applicant’s sentence to four years imprisonment. It noted that according to the evidence in the file the seven accused were not organised in a criminal group; most of the accused did not know each other before their arrest. As regards the applicant’s allegation that he had sold drugs to the undercover agent only under his decisive influence, the court solely noted that from the case file it appeared that the undercover agent had acted in accordance with the prosecutor’s order authorising his activity.
The prosecutor’s office and all the accused, including the applicant, lodged appeals on points of law.
The applicant pointed out that as resulted from the transcripts of the registered phone conversions all drug transactions took place at the initiative and insistence of the undercover agent. He argued that before 19 July 2007 when he had been approached by the latter he was not known as a drug dealer. He also claimed that although he had been under police surveillance between July and November 2007 no other buyer than the undercover agent had been identified.
The High Court of Cassation and Justice allowed the prosecutor’s office’s appeal and dismissed the applicant’s appeal. It quashed the decision of 19 November 2008 upholding the judgment of 5 September 2008.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure in force at the material time and of Law no. 143 are set out in Constantin and Stoian v. Romania (nos. 23782/06 and 46629/06, §§ 33-34, 29 September 2009).
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial in the criminal proceedings against him. In particular, he complains that the undercover agent had a decisive influence on his criminal activity, inciting him to commit the offence of drug trafficking.
QUESTIONS TO THE PARTIES
Did the applicant receive a fair trial within the meaning of Article 6 § 1 of the Convention? In particular:
a. Was the applicant subjected to entrapment?
b. Prior to 19 July 2007, did the domestic authorities have any good reason to suspect the applicant of any previous, ongoing or envisaged criminal activity in the field of drug trafficking?
c. Was the applicant afforded adequate procedural safeguards enabling him to raise a complaint about entrapment before the domestic courts? If so, was it taken fully into account by the domestic courts?
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