ÎCCJ, decizie (scj.ro #86340)

ÎCCJ, decizie (scj.ro #86340) (Înalta Curte de Casație și Justiție)

COUR EUROPÉENE

DES

DROITS DE

L’HOMME

EUROPEAN COURT OF

HUMAN RIGHTS

THIRD SECTION

CASE OF

CONSTANTIN AND

STOIAN v.

ROMANIA

(Applications nos.

23782/06 and 46629/06)

JUDGMENT

STRASBOURG

29

September 2009

FINAL

29/12/2009

This judgment may be

subject to editorial revision.

In the case of

Constantin and Stoian v.

Romania

,

The European Court of Human Rights (Third Section), sitting as a

Chamber composed of:

Josep Casadevall,

President,

Corneliu Bîrsan,

Boštjan M. Zupančič,

Egbert Myjer,

Ineta Ziemele,

Luis López Guerra,

Ann Power,

judges,

and Stanley Naismith

,

Deputy

Section

Registrar

,

Having deliberated in private on

8

September 2009

Delivers the following judgment, which was adopted on that date:

PROCEDURE

23782/06 and 46629/06) against

Romania

lodged with the Court

under Article 34 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr

Marius-Georgian Constantin and Mr Florin Stoian (“the applicants”), on

1 June 2006

and

9 November 2006

respectively.

first applicant) and Mr Nicolae Trăistaru (the second applicant),

lawyers practising in

Bucharest

. The Romanian

Government (“the Government”) were represented by their Agent, Mr Răzvan-Horațiu

Radu, of the Ministry of Foreign Affairs.

12 February 2008

the President of the

Third Section decided

to communicate the complaints concerning the allegations of lack of a

fair trial (Article 6 §§ 1, 2 and 3 of the Convention) and the use of

agents

provocateurs

to the Government. It was also decided to examine the merits

of the applications at the same time as their admissibility (Article 29 § 3).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

respectively. The first applicant lives in

Bucharest

, and the

second in Afumați, Ilfov county.

11 November 2003

the prosecutor

started criminal proceedings against “George” and “

Florin

”, later

identified as the applicants, based on information that they were trafficking

in drugs. No other details were given in this decision of the prosecutor.

A.  The events of

18

November 2003

18 November 2003

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 and to obtain two grammes of heroin in order to gather evidence of the applicants’

alleged involvement in drug trafficking. It relied on Law no. 143/2000 on

the fight against drug trafficking and illegal drug use (“Law no. 143”). The

same day, the organised crime and drug trafficking section of the prosecutor’s office

at the Bucharest Court of Appeal (“the prosecutor’s office”) authorised the

operation for ten days and handed over the two grammes of heroin to the

undercover agent (referred to in the domestic proceedings as “Alex 1”).

the car park of McDonald’s Dristor (

Bucharest

), where the

trafficking was thought to happen. Meanwhile G.M., a police collaborator

(referred to in the domestic proceedings as “Alex 2”), set up a meeting with the

first applicant, whom he had known previously.

together with Alex 2. The first applicant and another man were sitting in

another car. Alex 2 got out and approached the applicant; he was to tell

him that Alex 1, whom the applicant did not know, wanted to contact a person

who could sell him two grammes of heroin. After a short talk, Alex 2 returned

accompanied by the first applicant; the latter then left by car with Alex 1.

The police followed the car until it stopped in front of a building on

Zizin Street

. The

applicant made a phone call from Alex 1’s mobile phone. He left the car and

entered the building, where he remained for 10-15 minutes. He then returned

with the second applicant to Alex 1’s car. The first applicant took the right

front seat, while the second applicant remained standing near the right front

door of the car. Alex 1 handed money to the first applicant; the latter passed it

to the second applicant who took it and walked away.

and shouted: “Police, stop!”. The second applicant started running, abandoning

his jacket and the money. He managed to escape into one of the neighbouring buildings.

Sixteen tablets of methadone were found on him. He admitted that the tablets

belonged to him and declared that he was a rehabilitated drug user and was

authorised to take methadone. A small package containing 1.5 g of heroin was visible

in the car near the gear lever. The police seized it.

where the second applicant had come, and where he lived with S.F., his partner.

No drugs were found.

hours, but released on

19 November 2003

. While in custody, he

was taken to hospital under suspicion that he had swallowed a package of

heroin. The treatment did not confirm the suspicions.

18 May 2004

after

being noticed on the street by Alex 1. He was taken into police custody. On

20 May 2004

the

Bucharest

County Court

ordered his pre-trial detention for thirty days. His detention

was subsequently extended by the court every thirty days until the end of the

proceedings before the first-instance court.

B.  Applicants’ statements during the criminal

investigations

18

November 2003

the first applicant made a statement to the police, in the

presence of a lawyer. He admitted to having facilitated the drugs sale between

Alex 1 and the second applicant. He stated that he had taken the money from

Alex 1 and handed it to the second applicant, who had then put a small bag of

heroin near the gear lever. He also stated that he had obtained the methadone

tablets from a nurse in

Badgasar

Hospital

in

exchange for a bag of coffee.

in the same terms, which is not dated and is signed only by the first applicant.

He claimed it had been taken the same day, on his arrest.

the presence of his lawyer, changed his position and stated before the

Bucharest County Court that he was not a drug dealer and had not taken drugs

for two years. He also stated that G.M. had requested him to make the second

applicant come out of his house, where the police would be present. He had only

agreed to help because he understood that it was a covert police operation. He

maintained that an exchange of money for a small bag had occurred between Alex

1 and the second applicant. He also confirmed that the sixteen tablets of

methadone were for his own use and that he had obtained them without

prescription.

7 July 2004

the first

applicant took the same position as before the County Court. He explained that

he had given the statement of

18 November 2003

thinking that he

would be participating in the criminal proceedings only as a witness and not as

an accused.

that he had not handed anything to the first applicant, that he had not known

what the small package found in the car contained and that he had only agreed

to accompany the first applicant to the car because the latter had told the

second applicant that he had money for the second applicant’s partner, S.F. He

also declared that at that moment he had not known that S.F. was a drug dealer.

On

1 March 2004

S.F. was also arrested for drug trafficking

in the context of a separate investigation.

on

20 May 2004

before the Bucharest County Court and on

7 July 2004

in an

interview with the prosecutor.

12 July 2004

the prosecutor’s office

indicted the applicants for possession and sale of dangerous drugs in violation

of Law no. 143. It established, based on the evidence gathered, that the second

applicant had given the small bag of heroin to the first applicant, who had handed

it to Alex 1, and that in exchange Alex 1 had given him the money, which he had

then handed to the second applicant.

been found guilty of possession and consumption of drugs in 2001 and that the

second applicant had no known criminal record.

C.  Proceedings before the

Bucharest County

Court

7 September 2004

. The

first applicant reiterated that he had only agreed to contact the second

applicant because he had been informed of the covert police operation. The

second applicant maintained his position and denied trafficking in drugs.

the prosecutor’s version of the facts and maintained that the first applicant

had not been aware of the police operation.

to the applicants during the investigations changed their statements before the

court and claimed that they had signed without reading statements drafted

entirely by the police.

20 May

2005

, after several reminders left unanswered by the prosecutor’s office,

the applicants’ lawyers no longer insisted on obtaining an answer concerning the

fate of the bag of heroin released to Alex 1 for the covert operation.

25 May 2005

the

Bucharest

County Court

gave judgment, acquitting the applicants. It considered that

the elements in the file indicated that on

18 November

2003

the police had sought to provoke a drug sale and had failed. Consequently,

the heroin received by Alex 1 from the prosecutor’s office had been placed in

the car to prove the alleged commission of the criminal offence. The court also

noted that the criminal proceedings had been started illegally on

11 November as at that date there had been no relevant information on the

applicants’ alleged criminal behaviour, and the facts under investigation had only

taken place on 18 November. It also noted that the exchange of money for

drugs was not proved, and that the witnesses could not support the prosecution’s

version. The court ordered the second applicant’s immediate release.

D.  Appeal proceedings

3 October 2005

the appeal

proceedings started before the Bucharest Court of Appeal, on an application

lodged by the prosecutor’s office. The Court of Appeal heard evidence from the

prosecutor and the applicants’ lawyers. The applicants used their right to

address the court before the end of the hearing (

ultimul cuvânt al

inculpatului

). No other evidence was requested by the parties or heard by

the court.

10 October

2005

the Court of Appeal convicted and sentenced the first applicant

to seven year’s imprisonment and the second applicant to six years’

imprisonment. It considered that the detailed description of the events made by

the undercover agent and the collaborator should have been given more weight as

they corroborated the police reports on the arrest in

flagrante delicto

and thus reflected the truth. The court decided that the first applicant had not

been honest in his statements and that he had only claimed to have been aware

of the covert police action because he knew from his own experience that

collaborators were protected by law. It also concluded that the second applicant’s

aim had been to protract the investigations. The court took the fact that the

witnesses changed their position as proof of their dishonesty.

The Court of Appeal set aside the County Court’s finding of incitement

as follows:

“The

court considers, unlike the first-instance court, that Article 68 §§ 1 and 2 of

the Code of Criminal Procedure is not applicable so long as the evidence does not

show that Constantin Marius Georgian was threatened or coerced to commit the

facts. Likewise it is not proved that he was persuaded by the police to commit a

crime, ... he agreed to facilitate the drug sale, but no longer admitted to it before

the court.”

It considered the arguments based on the origin of the heroin

found as follows:

“...

Constantin Marius Georgian himself stated when apprehended by the police and in

subsequent statements that the drugs found in the car had been handed over by

Stoian Florin, in exchange for 6,000,000 lei.”

possession of sixteen tablets of methadone.

preventive detention from “

19 May 2004

to

25 May 2004

”. It also confiscated,

under Article 17 § 1 of Law no. 143/2000, the eight tablets of methadone and

1.48 g of heroin left after the laboratory tests from the first and the second

applicant respectively.

11 May 2006

the High Court of

Cassation and Justice upheld the conviction following an appeal on points of

law lodged by the applicants.

It also corrected the material error in the appeal decision

concerning the second applicant’s preventive detention, and in an interlocutory

judgment of

14 July 2006

noted that he had been detained from

19 May 2004

to

25 May 2005

.

E.  Other proceedings

7 July 2004

and on 2 June and

16 August 2006

the applicants

lodged criminal complaints against G.C., the prosecutors in charge of their

investigation, the undercover agent and the witnesses alleging that they had

given false testimony to the investigative authorities. In addition, the

first applicant, in the appeal of

7 July

2004

, complained that several items adduced by him as evidence had

disappeared from the criminal file. On

11 October

2004

and 23 May and

13 June

2007

the prosecutor’s office at the High Court of Cassation and

Justice decided not to prosecute G.C. and Alex 1. On

25 February 2008

a similar

decision was taken in respect of the witnesses by the prosecutor’s office at the

Bucharest District Court.

II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW

reads as follows:

Article

68

“1.  It

is forbidden to use violence, threats or other means of coercion, as well as

inducements, in order to obtain evidence.

is also forbidden to incite a person to commit or continue committing a

criminal offence for the purpose of obtaining evidence.”

follows:

Article

1

“In

the present Act the terms and expressions below shall have the following

meaning:

...

(k)  Undercover

agents: police officers specifically designated to carry out, with the

prosecutor’s authorisation, investigations with a view to collecting data

regarding the existence of the offence and the identification of the offender

and precursory acts, under another identity than their real one. Such

authorisation shall be conferred for a limited time only.”

Article

21

“1.  The

prosecutor may authorise the use of undercover agents to determine the facts,

identify the offender and obtain evidence where there is good reason to believe

that a criminal offence as defined in the present Act has been perpetrated or

is about to be committed.”

Article

22

“1.  Police

officers from the special units who act as undercover agents, as well as

persons acting with them, shall be allowed to procure drugs, base and compound

chemical substances with the prosecutor’s prior authorisation, with a view to

discovering criminal activities and identifying the persons involved in such

activities.

results of the actions of the police officers and persons acting with them

referred to in paragraph 1 may constitute evidence.”

special investigative techniques are detailed in

Ramanauskas v. Lithuania

[GC], no. 74420/01, §§ 35-37, ECHR 2008‑....

THE LAW

I.  JOINDER OF THE APPLICATIONS

of both fact and law, the Court finds it appropriate to join and examine them

together.

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

received a fair trial in the criminal proceedings against them, alleging a

violation of Article 6 §§ 1, 2 and 3 (a), (b) and (c) of the Convention, which

reads as follows:

“1.  In

the determination of his civil rights and obligations or of any criminal charge

against him, everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be excluded

from all or part of the trial in the interests of morals, public order or

national security in a democratic society, where the interests of juveniles or

the protection of the private life of the parties so require, or to the extent

strictly necessary in the opinion of the court in special circumstances where

publicity would prejudice the interests of justice.

charged with a criminal offence shall be presumed innocent until proved guilty

according to law.

charged with a criminal offence has the following minimum rights:

(a)  to

be informed promptly, in a language which he understands and in detail, of the

nature and cause of the accusation against him;

(b)  to

have adequate time and facilities for the preparation of his defence;

(c)  to

defend himself in person or through legal assistance of his own choosing or, if

he has not sufficient means to pay for legal assistance, to be given it free

when the interests of justice so require;”

they had been incited to commit a criminal offence by the undercover police

agent and his collaborator acting as

agents provocateurs

.

observed the procedural requirements in issuing the indictment; that the

prosecution had been based on evidence gathered by pressuring witnesses into giving

false testimony; that the first applicant had not been assisted by a lawyer

when he had given his first statement and when the prosecutor had informed him

of the accusations on 18 November 2003 and had not been properly summoned

during the investigations; and that the second applicant had not been informed

of the prosecution acts between 18 November 2003 and 19 May 2004.

had changed the interpretation of the facts without hearing evidence and

without clarifying where the money given by Alex 1 had come from or what had

happened to the money and the two grammes of heroin released by the prosecutor

to the undercover police officer. The second applicant also pointed out that

the Court of Appeal had not ordered the examination of the bag of heroin for

fingerprints in order to establish whether he had touched that bag.

he had been authorised to have the methadone as a rehabilitated drug user, and

had thus been convicted of a crime he had not committed.

the Court of Appeal had interpreted the evidence had infringed their right to the

presumption of innocence.

A.  Admissibility

is not manifestly ill‑founded within the meaning of Article 35 § 3 of the

Convention. It further notes that it is not inadmissible on any other grounds.

It must therefore be declared admissible.

B.  Merits

(a)  The

Government

covert police operations was common to other European countries and was

recommended by the Council of Europe and the European Union in certain

instances.

denied that there had been police incitement, arguing that the information

prior to the covert operation had revealed that the first applicant had been

predisposed to commit a criminal offence (they referred to

Sequeira v. Portugal

(dec.), no. 73557/01, ECHR 2003‑VI

). They

pointed out that the second applicant had had no direct contact with the

undercover agent.

to have been interviewed once by the prosecutor in the absence of his lawyer.

However, they considered that the applicant’s defence rights had not been affected

by that episode, in so far as he had not made any incriminating statements.

Moreover, that remained an isolated episode, the applicant having been assisted

by his lawyer throughout the other more complex interviews.

They also pointed out that the second applicant had not been

informed about the investigations because he had absconded from

18 November 2003

until May

2004.

unfairness in the proceedings before the Court of Appeal. In their view, the

court had given a detailed interpretation of the evidence and explained its conclusions

thoroughly. The decision had, in addition, been upheld by the High Court of

Cassation and Justice.

Moreover, unlike in the case of

Teixeira de Castro v.

Portugal

(

9 June 1998

,

Reports of Judgments and Decisions

1998‑IV),

the courts in the case at hand had not based their

decision solely on the undercover agents’ testimonies. The applicants had been heard

by the first‑instance court (the Government referred,

a contrario

,

to

Ilișescu and Chiforec v. Romania

, no. 77364/01,

1 December

2005

) and had had the possibility of

cross-examining the undercover agent (they referred,

a contrario

, to

Dănilă

v. Romania

, no. 53897/00,

8 March

2007

).

In their view, it was enough for the first-instance court to

examine the evidence directly.

had cleared up the doubts concerning the origin of the drug, as it had established

that the package had been handed over by the second applicant in exchange for

the money from Alex 1. Moreover, they averred that the applicants’ lawyers had not

requested further evidence before the Court of Appeal.

and prosecutors had examined the applicants’ allegations of police incitement and

dismissed them in thoroughly reasoned decisions.

had not produced a valid prescription for the methadone. In any case the appeal

courts had answered his plea.

(b)  The

applicants

from the very beginning of the covert operation and had been asked to help

“catch” the second applicant in

flagrante delicto

. In his view Alex 1 had

acted as an

agent provocateur

and used the two grammes of heroin to

frame the applicants. He pointed out that the courts had been unable to establish

what had happened to that heroin. Lastly, he argued that he had submitted a

valid authorisation to possess methadone at the material time.

the time‑limits set by the Court.

fairness of the proceedings, the applicants put forward two arguments. Firstly,

they argued that they had only committed the offence because of the

intervention of

agents provocateurs

, the first applicant claiming that

he had been aware of the covert police operation and the second applicant that

he had only agreed to accompany the first applicant to the car in order to receive

his partner’s money. Secondly, they argued that in convicting them, the Court

of Appeal had not carried out a thorough examination of the evidence.

Article 6 in which it elaborated on the concept of entrapment as distinct from

the use of legitimate undercover techniques and reaffirmed the domestic courts’

obligation to carry out a careful examination of the material in the file where

an accused invokes police incitement. In this context, the Court has also established

that its function under Article 6 § 1 is not to determine whether

certain items of evidence were obtained unlawfully, but rather to examine

whether such “unlawfulness” resulted in the infringement of another right

protected by the Convention; it has thus to review the quality of the domestic

courts’ assessment of the alleged entrapment and to ensure that they adequately

secured the accused’s rights of defence, in particular the right to adversarial

proceedings and to equality of arms (see

Ramanauskas

, cited

above, §§ 49-61;

Malininas v. Lithuania

, no. 10071/04, §§ 34-35,

1 July 2008; and

Bykov v. Russia

[GC], no. 4378/02, §§ 88-93,

10 March 2009).

confined themselves to “investigating criminal activity in an essentially passive

manner” in the present case (see

Ramanauskas

, cited above, § 55), the

Court has regard to the following considerations. Nothing in the applicants’

past suggested a predisposition to trafficking in drugs. The fact alone that

one of them was a convicted drug user (see paragraph 21 above) cannot change

the Court’s conclusion. The Court notes that the prosecutor did not give

details, or refer to any objective evidence, concerning the applicants’ alleged

unlawful behaviour in his decision to start criminal proceedings. Moreover, no

heroin was found either in the first applicant’s possession or in the second

applicant’s home (see paragraphs 10-12 above).

different interpretations of the events that had occurred on

18 November 2003

. According

to the Government, the first applicant had agreed to broker the deal between

the undercover agent, whose identity he did not know, and the second applicant,

and the drugs found in the agent’s car had resulted from that deal. However,

the first applicant, claiming police incitement, stated that he had been

informed of the covert operation, while the second applicant claimed that he

had been tricked into accepting the money; both applicants claimed that the two

grammes of heroin found by the police were the same as those released by the prosecutor’s

office for the covert operation.

notwithstanding its subsidiary role in assessing the evidence, the Court shall

examine whether the applicants were able to raise effectively the issue of

incitement (see

Ramanauskas

, §§ 60-61, and

Malininas

, § 34, both

cited above).

evidence taken from the applicants, the undercover agent and witnesses

confirmed that there had been police incitement, and therefore acquitted the

applicants on that ground.

reversed the decision and convicted the applicants of trafficking in drugs. In

doing so, the Court of Appeal did not interview the persons who had appeared

before the prosecutor and the County Court. It decided to give precedence to

the statements obtained by the prosecutor and considered that those given before

the first-instance court had been false.

is called upon to examine the case as to the facts and the law and to make a

full assessment of the question of the applicant’s guilt or innocence, as it

was in the present case, it cannot, as a matter of fair trial, properly

determine the issues without a direct assessment of the evidence given in

person by the applicant where he or she claims not to have committed the act

alleged to constitute the criminal offence (see

Dănilă v.

Romania

, no. 53897/00, § 35, 8 March 2007

). The Court of Appeal

failed, in the present case, to take any evidence, let alone interview directly

the applicants on the merits of the accusations; the fact that the applicants

did not specifically request further evidence to be taken by the Court of Appeal,

as the Government pointed out, does not preclude that court from taking positive

measures to that effect (see

Dănilă

, cited above, § 41).

Likewise, the applicants’ last address to the court cannot be equated with

their right to be heard by the court during the trial (see

Constantinescu

v. Romania

, no. 28871/95, § 58, ECHR 2000‑VIII).

hold in the abstract that evidence given by a witness in open court and on oath

should always be relied on in preference to other statements made by the same

witness in the course of criminal proceedings, not even when the two are in

conflict (see

Doorson v. the Netherlands

, 26 March 1996, § 78,

Reports

1996‑II

), the Court is not convinced by the summary reasoning

given by the Court of Appeal to justify the precedence given to the statements

obtained by the prosecutor. It notes, in particular, that the doubts harboured

by the Court of Appeal concerning the lack of honesty of the witnesses were not

supported by the findings of the investigators in the matter. The fact that the

applicants were heard by the first‑instance court and had the possibility

of cross-examining witnesses at that stage of the proceedings does not alter

the Court’s conviction on this point.

convinced by the answer the authorities, in particular the courts, gave to the

allegations of police incitement (see

Ramanauskas

, cited above, § 61).

Whether or not the first applicant knew of the police action and whether or not

the second applicant was tricked into accepting the money, the facts of the

case indicate that if it had not been for the agent’s express request to buy

drugs, none of the events of 18 November would have occurred.

failed to properly examine the first applicant’s change of position,

considering without further explanation that he had refused, before the courts,

to admit to his involvement in the drug trafficking.

and the difficulties of the task of the investigating agents, the Court

considers, having regard to the foregoing, that the actions of the undercover

police officer and his collaborator had the effect of inciting the applicants

to commit the offence of which they were convicted, going beyond the mere

passive investigation of existing criminal activity, and that the domestic

courts did not investigate sufficiently the allegations of incitement. For

these reasons the applicants’ trial was deprived of the fairness required by

Article 6 of the Convention.

There has accordingly been a violation of Article 6 § 1 of the

Convention on this account.

conclusion above makes examination of the remainder of the complaint redundant.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

complaints. However, in the light of all the material in its possession, and in

so far as the matters complained of are within its competence, the Court finds

that they do not disclose any appearance of a violation of the rights and

freedoms set out in the Convention or its Protocols. In particular, the second

applicant complained under Article 6 § 1 of the Convention that because of the

domestic courts’ erroneous recording of his pre-trial detention, he would have

to serve one additional year of detention. This error was, in fact, corrected

by the High Court of Cassation and Justice on

14 July

2006

(see paragraph 31 above). Lastly, invoking in substance Article

1 of Protocol No. 1 to the Convention, the second applicant complained that he

could not comply with the confiscation order concerning the 1.48 g of heroin, since

the heroin found on 18 November had already been surrendered to the

investigators and he did not possess any other drugs. The Court notes, however,

that the confiscation order referred to the same drugs that were seized by the

police during the events on 18 November (see paragraph 30 above), and that no

other measures were taken against the applicants that would affect their

property rights for the purposes of Article 1.

manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3

and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

41 of the Convention provides:

“If the Court finds that there has been

a violation of the Convention or the Protocols thereto, and if the internal law

of the High Contracting Party concerned allows only partial reparation to be

made, the Court shall, if necessary, afford just satisfaction to the injured

party.”

A.  Damage

a reasonable amount in compensation for pecuniary and non-pecuniary damage.

The second applicant claimed, in his initial application to the

Court, 252,000 euros (EUR) in respect of pecuniary damage and EUR 300,000 for

non-pecuniary damage; he did not answer the Court’s request, on

17 June 2008

, to

formulate his claims according to Rule 60 of the Rules of Court. After the

time-limits set for submission expired and the applicant was warned that his

application might be struck out, he informed the Court that he maintained his previous

claims.

claim for pecuniary damages should be dismissed as he had failed to adduce any

evidence as to the damage actually incurred.

In their view the second applicant’s claims should be dismissed

as he had failed to present them in line with Article 60 of the Rules of Court.

They referred to

Nițescu v. Romania

(no. 26763/03, § 48,

21 April 2009

). In

addition, they argued that the claims for the alleged pecuniary damage were

excessive and unjustified and that there was no causal link to any acts of the

authorities.

They also considered that the finding of a violation constituted

in itself sufficient just satisfaction for the non-pecuniary damage alleged by

the applicants.

between the violation found and the pecuniary damage alleged by the first

applicant; it therefore rejects this claim. On the other hand, it awards the first

applicant EUR 10,000 in respect of non-pecuniary damage.

applicant, who was represented by counsel, did not comply with the conditions

for submitting his claims, nor did he present a reasonable justification for

his failure to comply with the time-limits. It therefore rejects his claims

entirely.

B.  Costs and expenses

C.  Default interest

default interest should be based on the marginal lending rate of the European

Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.

Decides

to join the applications;

2.

Declares

the complaint concerning Article 6

(fairness of the criminal proceedings and presumption of innocence) admissible

and the remainder of the applications inadmissible;

3.

Holds

that there has been a violation of

Article 6 § 1 of the Convention on the ground of police incitement and failure

of the domestic authorities to investigate the matter;

4.

Holds

that there is no need to examine the remainder

of the complaint under Article 6 of the Convention;

5.

Holds

(a)  that the respondent State is to pay the first applicant,

within three months from the date on which the judgment becomes final in

accordance with Article 44 § 2 of the Convention, EUR 10,000

(ten thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary

damage, to be converted into the respondent State’s national currency, at the

rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three

months until settlement simple interest shall be payable on the above amounts

at a rate equal to the marginal lending rate of the European Central Bank

during the default period plus three percentage points;

6.

Dismisses

the remainder of the applicants’

claim for just satisfaction.

Done in English, and notified in writing on

29 September 2009

, pursuant

to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley

Naismith                                                             Josep

Casadevall

Deputy Registrar                                                                   President