ÎCCJ, decizie (scj.ro #86315)

ÎCCJ, decizie (scj.ro #86315) (Înalta Curte de Casație și Justiție)

COUR EUROPÉENE

DES

DROITS DE

L’HOMME

EUROPEAN COURT OF

HUMAN RIGHTS

THIRD SECTION

CASE OF

BULFINSKY

v.

ROMANIA

(Application no.

28823/04)

JUDGMENT

STRASBOURG

1 June

2010

FINAL

01/09/2010

This judgment has become final under Article 44 § 2 of the

Convention. It may be subject to editorial revision.

In the case of

Bulfinsky v.

Romania

,

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

Chamber composed of:

Josep Casadevall,

President,

Elisabet Fura,

Corneliu Bîrsan,

Alvina Gyulumyan,

Egbert Myjer,

Ineta Ziemele,

Ann Power,

judges,

and Santiago

Quesada

,

Section Registrar

,

Having deliberated in private on

11 May 2010

,

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

PROCEDURE

28823/04) against

Romania

lodged with the Court under Article 34 of the

Convention for the Protection of Human Rights and Fundamental Freedoms (“the

Convention”) by a Romanian national, Mr Cristian-R

ă

zvan

Bulfinsky (“the applicant”), on

2 July 2004

.

a lawyer practising in

Bucharest

. The Romanian

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

Radu, of the Ministry of Foreign Affairs.

Section decided to communicate to the respondent Government the applicant's complaint

under Article 6 § 1 of the Convention that the criminal proceedings against him

had been unfair because of police entrapment. It was also decided to examine

the merits of the application at the same time as its admissibility (Article 29

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

Bucharest

.

responsible for fighting organised crime and drug trafficking (“the police”)

received information that the applicant and his friends P.T. and D.C. were

trafficking in drugs. The three friends were ecstasy users. At the time of the

events, the applicant and D.C. were students.

18 April 2002

the police sought

authorisation from the prosecutor's office to use undercover agents and a

collaborator to follow the lead regarding the suspects' alleged criminal

activities. On the same day the organised crime and drug-trafficking section of

the prosecutor's office at the Supreme Court of Justice (“the prosecutor's

office”) authorised two agents, referred to in the proceedings as “Toni” and

“Sven” (the latter being introduced to the applicant and his friends as

“Alex”), and a collaborator, “Gotti”, to participate in the operation.

A.  The uncontested events on

29 April 2002

29 April 2002

Sven met the applicant,

D.C. and P.T. in a restaurant (“restaurant E”) and agreed to meet with them

again later the same day.

9.15 p.m.

the applicant and

P.T. were sitting with Alex on the terrace of restaurant M and D.C. was sitting

at the adjacent table with some friends, when plain clothes police officers

rose from the neighbouring tables and arrested the three suspects. A yellow

plastic bag was taken from under the applicant's table and its contents checked;

the police noted that it contained bread, under which were several packets fastened

with brown tape which together contained 2,016 white tablets which later proved

to be ecstasy.

drug trafficking. The police took photographs and videotaped the events. Images

from the operation were shown on the evening news.

B.  The statements of the applicant, D.C. and P.T. during

the proceedings

that she and P.T. had taken part in drug trafficking. However, she withdrew her

confessions before the first‑instance court, claiming that she had been

coerced into making them by the police with the promise that if she wrote down

what she was told to write, she would be released after ten minutes.

had been contacted by Gotti, whose real name was

Bogdan

, and who

was a friend of D.C. They gave the authorities his full name and address for

further investigation. Gotti had told them that Alex had various objects

(clothes and watches) for sale at reasonable prices. They finally agreed to meet

Alex and at

4.30 p.m.

on 29 April they, together with

Bogdan

, went to

restaurant E. They sat down with Alex, who did not have the merchandise with

him. Later that day the three friends were at bar N. when

Bogdan

told them

that Alex was at restaurant M and could meet them again. The applicant and

Bogdan

left in

Bogdan's car. After a while, they called D.C. and P.T., who had stayed behind,

and told them that

Bogdan

had forgotten a yellow plastic bag under

their table at the bar and asked them if they could bring it to restaurant M as

it contained food for Bogdan's wife, who was ill.

9.15 p.m.

the applicant and

Bogdan

arrived at

restaurant M and sat at Alex's table. Ten minutes later P.T., who was carrying

Bogdan's plastic bag, and D.C., joined them. P.T. sat at Alex's table while

D.C. sat at the next table with some acquaintances.

officers intervened, expecting to find exactly 2,000 tablets of ecstasy in the

bag under the table.

friends insisted that the drugs had in fact been given to the undercover agents

by the police for the purpose of the covert operation. In support of their statements

they pointed out that despite their constant surveillance over the previous few

days the police could not explain where the friends had obtained the drugs.

C.  The criminal proceedings against the applicant

into custody on the evening of

29 April 2002

, on suspicion of

trafficking in drugs. Their detention was maintained by the courts throughout

the proceedings.

applicant, D.C. and P.T., and from two eyewitnesses who had been present on the

terrace at restaurant M, and examined the written records of statements by Toni

and Sven. At the prosecutor's request, both the applicant's and D.C.'s flats

were searched by the police. No drugs or other illegal substances were found.

The prosecutor concluded that on

29 April

2002

Gotti had informed Toni that the three persons were preparing a

transaction involving MDMA tablets (

methylenedioxymethamphetamine

). Toni had

then contacted Sven, who had met with the suspects to secure the transaction.

According to Sven's statements, the suspects had offered to sell him 4,000

tablets of MDMA for 4 US dollars each.

21 June 2002

the prosecutor's

office committed the applicant, P.T. and D.C. for trial on charges of drug-trafficking,

in violation of Law no. 143/2000 on the fight against drug

trafficking and illegal drug use (“Law no. 143”).

investigations from those concerning another participant in the trafficking,

Bogdan

, who had

not yet been identified by the police. On

13 February

2003

, the prosecutor's office at the Supreme Court of Justice

identified

Bogdan

as being the same person as Gotti and closed

the investigation against him.

County Court.

drug trafficking and claimed that they had been entrapped by the police. They repeatedly

stated that

Bogdan

had also been present at restaurant M.

the court of hearing evidence from

Bogdan

in the presence of

the defendants. They also requested the police to produce the bag and the packets

in which the tablets had been found and to collect fingerprints from them. They

considered that the court should see the video tapes of the events. Lastly,

they asked for a confrontation between the applicants, which would allow them

to prove that the police had put pressure on them and made them promises in

order to obtain the initial declarations.

The court did not hear that evidence.

15 April 2003

. It found

the three accused guilty of drug trafficking and sentenced them each to four

years' imprisonment. It deducted from the sentence the time spent in pre‑trial

detention. The court also confiscated the 1,965 tablets of MDMA that were left

after laboratory tests had been carried out.

on the ground that under Law no. 143 statements made by undercover agents and

their collaborators can constitute evidence. The court was satisfied that those

statements had not been obtained illegally and considered that the defence

argument to the contrary could not taint the evidence. It also considered that

the intention of the accused to sell drugs was evidenced by their entering into

negotiations with Toni and Gotti, which in turn led to their authorising Sven

to make the transaction with the defendants and obtain the drugs from them.

In reaching its conclusion, the County Court relied on the

statements made by the suspects and the undercover agents Toni and Sven to the

police, as well as the declarations made by the applicant before the court. It

gave precedence to the statement given by D.C. during the investigations as it

considered that her withdrawal of her initial statement to the police was

unjustified, as she had not proved that she had been coerced into making it.

appeal proceedings

15 April 2003

. The

defence counsel reiterated that the evidence gathered against the defendants

was illegal, that the drugs had belonged to the police and that

Bogdan

should be

heard by the court.

29 October

2003

the Bucharest Court of Appeal upheld the County Court's

findings on the facts of the case and its examination of the participants'

guilt. It considered, however, that the County Court had erred in determining the

sentence, in that it had not taken into account the seriousness of the crimes

committed and the fact that, as students, the participants had a higher level of

education which should have allowed them to comprehend the gravity of their

deeds. It therefore increased the sentence to twelve years' imprisonment for

each defendant.

20 April 2004

the High

Court of Cassation and Justice dismissed the defendants' appeals in cassation

and upheld the Court of Appeal's decision.

II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW

Procedure 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.

texts on the use of special investigative techniques are detailed in

Ramanauskas

v. Lithuania

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

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

a fair trial in the criminal proceedings against him, alleging a violation of

Article 6 §§ 1 and 3 of the Convention, which read as follows:

“1.  In

the determination of ... any criminal charge against him, everyone is entitled

to a fair and public hearing... Judgment shall be pronounced publicly...

charged with a criminal offence has the following minimum rights:

...

(d)  to

examine or have examined witnesses against him and to obtain the attendance and

examination of witnesses on his behalf under the same conditions as witnesses

against him;”

had been entrapped by the undercover agents and their collaborator and that the

drugs found at the scene had belonged to the police. He also complained that

there was no lawful evidence of their involvement in drug trafficking and that

the courts had failed to examine essential evidence; in particular, they had

failed to ask for fingerprints to be taken from the bag containing the drugs, to

take

a statement from the key witness

Bogdan

, and to hear the

transcription of the telephone conversations that had taken place between the

co-defendants and the undercover agents. In addition, he considered that the

prosecutor and the courts had not correctly established the legal classification

of the crime allegedly committed.

Under the same Article, the applicant complained that the

decisions had not been pronounced publicly.

A.  Admissibility

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

of the facts, as confirmed by the domestic courts.

procedure on covert police operations in

Romania

and pointed

out that a system permitting such operations was common to many European

countries and was recommended by the Council of Europe and the European Union

in certain instances.

denied that there had been police entrapment, and considered that the evidence

in the file supported their submission.

in the proceedings. In their view, the courts had given a detailed

interpretation of the evidence and had explained their conclusions thoroughly.

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, but also on the defendants' statements

given at various stages of the proceedings.

Klaas v. Germany

(22

September 1993, § 29,

Series A no. 269),

the Government pointed out that it is not normally within

the province of the European Court to substitute its own assessment of the facts

for that of the domestic courts and, as a general rule, it is for these courts

to assess the evidence before them.

b)  The

applicant

convincing evidence in the file that he had taken part in drug trafficking, and

he reiterated that no drugs had been found on him at the time of his arrest.

operation involving the sale of drugs, in so far as the drugs had passed from

one police agent's hands to the other without any intention of them being sold.

In his opinion, it was merely a police operation aimed at gathering evidence. He

reiterated that the courts had not heard the video or audio recordings of the

operation; that no fingerprints had been taken from the bag containing the

drugs; and that there had been no confrontation between the defendants and the

undercover agents and their collaborator, who had never even been heard by the

prosecutor or the courts.

Article 6, in which it drew a detailed distinction between the concept of

entrapment and 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 entrapment. 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 thus has 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 a number of considerations. There are no

indications that the applicant or the co-defendants have been previously

involved in drug‑related crimes. The Court notes that the authorities did

not give details or refer to any objective evidence concerning unlawful

behaviour by the suspects prior to the incidents of

29 April

2002

. Moreover, no drugs were found either in the applicant's

possession or in his home (see paragraph 16 above).

different interpretations of the events that occurred on

29 April 2002

. According

to the authorities, the applicant and his co-defendants had agreed to broker

the deal. However, the applicant, claiming police entrapment, stated that he

had not been aware of the content of the bag, which, in fact, belonged to the

police collaborator

Bogdan

; he also maintained that the drugs in the bag

had belonged to the police.

is essential that the Court examine the procedure whereby the plea of

incitement was determined in order to ensure that the rights of the defence

were adequately protected, in particular the right to adversarial proceedings and

to equality of arms (see

Ramanauskas

, §§ 60-61, and

Malininas

,

Khudobin v. Russia

, no. 59696/00, § 133,

ECHR 2006‑XII (extracts)

).

the courts relied exclusively on the evidence obtained during the

investigations, namely written reports by the undercover agents and the

statements made by the suspects, as well as the defendants' testimonies before

the first-instance court.

The courts did not reply to the defence's requests for evidence,

in particular in relation to Bogdan's involvement and role, or to their

requests for fingerprints to be collected from the bags containing the drugs or

for the recording of the events to be heard by the courts. Furthermore, the

courts did not hear the undercover agents. The defence thus had no opportunity to

cross-examine witnesses. The courts also decided to give precedence to the

statements obtained by the investigators and considered that those given before

the first-instance court had been false.

the police involvement, the domestic courts could not have ensured the respect

of the principle of fairness, and in particular the equality of arms, without

hearing evidence from

Bogdan

and the undercover

police officers and without allowing the defendants to question, even in

writing, those persons. Furthermore, the court should have examined or at least

given more thorough explanations to why it rejected the other requests for

evidence.

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, even when the two are in conflict (see

Doorson v.

the Netherlands

, 26 March 1996,

Reports of

Judgments and Decisions

1996‑II

). However, the Court considers

that the reasoning given by the County Court to justify the precedence given to

D.C.'s statements to the investigators might raise an issue as to the respect

of the rights of the defence.

which the domestic courts rejected the allegations of police entrapment. It

notes that the common ground of the divergent interpretations given by the

parties of the facts of the case is that the applicant and his friends

negotiated with Gotti/

Bogdan

and then met with

Sven.

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

considers, having regard to the foregoing, that the domestic courts did not

investigate sufficiently the allegations of entrapment. For these reasons the

applicant's 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 makes examination of the remainder of the complaint redundant.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

circumstances of the case, the sentence imposed on him constituted a violation

of Article 3 of the Convention.

5, about his arrest and pre-trial detention, in particular concerning the imposition

of that preventive measure and its repeated extension by the courts.

been increased by the Court of Appeal solely because he was a student, which in

his view constituted discrimination under Article 6 § 1 of the Convention taken

together with Article 14.

complained that he had been convicted of a crime that had never existed, in so far

as he had been entrapped.

applicant under Articles 3, 7 and 14 are simply a reiteration of those already

raised and examined under Article 6.

In addition, the Court notes that while a person may be

humiliated by the mere fact of being criminally convicted, what is relevant for

the purposes of Article 3 is that he should be humiliated not simply by his

conviction but by the execution of the punishment (see

Tyrer v.

the United Kingdom

, 25 April 1978, § 30, Series A no. 26)

. Nothing

in the case indicates such humiliation, and the applicant has failed to

substantiate his claims to the contrary. Lastly, the Court notes that the crime

of which the applicant was convicted is prohibited by Law no. 143. The Article

7 complaint is thus unsubstantiated.

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.

It follows that this part of the application is manifestly

ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of

the Convention.

Court notes that the applicant's pre-trial detention ended with the adoption of

the judgment of 15 April 2003, that is, more than six months before the

lodging of this application on 2 July 2004 (see

Mujea v. Romania

(dec.),

no. 44696/98, 10 September 2002, and

Negoescu v. Romania

(dec.), no. 55450/00, 17 March 2005).

introduced out of time and must be rejected in accordance with Article 35

§§ 1 and 4 of the Convention.

III.  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

respect of pecuniary damage, broken down as follows:

–  EUR 4,000 represents the salary he would have earned

from 2002 to 2004 if he had continued in the employment he had at the date of

his arrest;

–  EUR 105,000 represents the salary he would have earned

from 2004, when he was due to graduate from University, to date.

He also claimed EUR 105,000 in respect of non-pecuniary damage.

justified his claims and that there was no causal link with his conviction.

They also considered that the finding of a violation constituted

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

the applicant.

Lastly, the Government pointed out that, if the Court found that

the criminal proceedings had not been fair, the Code of Criminal Procedure provided

for the reopening of the proceedings before the domestic courts.

option of seeking the reopening of the proceedings under domestic law.

As to the damages sought by the applicant, the Court does not

discern any causal link between the violation found and the pecuniary damage

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

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

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.

Declares

the complaint concerning Article 6

inadmissible;

2.

Holds

that there has been a violation of

the principle of fair trial enshrined in Article 6 § 1 of the Convention;

3.

Holds

that there is no need to examine the remainder

of the complaint under Article 6 of the Convention;

4.

Holds

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

within three months of 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 on 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 amount at

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

the default period plus three percentage points;

5.

Dismisses

the remainder of the applicant's

claim for just satisfaction.

Done in English, and notified in writing on

1 June 2010

, pursuant

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

Santiago Quesada                                                            Josep

Casadevall

Registrar                                                                         President