EHRM, 05-02-2008, nr. 74420/01

The applicant submitted that his right to a fair trial had been infringed in that he had been incited to commit an offence that he would never have committed without the intervention of ‘agents provocateurs’.

He argued that the authorities bore responsibility for the conduct of AZ and VS. In its judgment in the instant case the Supreme Court had acknowledged that AZ was in fact an officer of the special anti-corruption police unit of the Ministry of the Interior (STT) and had instigated the offence. The applicant contended that the authorities could not legitimately claim that they had simply ‘joined’ a criminal act instigated by one of their own employees, and asserted that they should accept full responsibility for the acts carried out by AZ before the criminal conduct simulation model had been authorised. In any event, all his meetings with AZ — both before and after the model had been authorised — had taken place on the latter's initiative, as was attested by the record of AZ's telephone calls to the applicant. The applicant accordingly submitted that the crime would not have been committed without the authorities' intervention.

The applicant further complained that the domestic courts had failed to give an adequate answer to the question of the authorities' responsibility for the use of entrapment in inducing him to commit a crime. He submitted that by putting him in contact with AZ, VS had played a crucial role in the model that had led him to accept the bribe. He asserted that VS was a long-standing informer of the police, as was attested by the fact that the police had authorised him to act as an undercover agent in the case. The applicant inferred from this that the examination of VS would have been crucial in establishing whether he had been incited to commit an offence and that the authorities' failure to summon VS to appear as a witness had breached the relevant provisions of Article 6. The court had not sought to establish whether VS had collaborated with the judicial authorities. The applicant therefore submitted that he had been denied a fair hearing, in breach of Article 6 § 1 of the Convention.

The Government submitted that, since the Court was not a ‘fourth-instance judicial body’, it did not have jurisdiction to deal with the applicant's complaints, which related mostly to questions of fact and of application of domestic law.

They submitted that in any event the authorities had not incited the applicant to commit an offence and that the model forming the subject of his complaints had not infringed his rights under Article 6.

In this connection, the Government pointed out that VS and AZ had approached the applicant and negotiated the bribe on their own private initiative, without first having informed the authorities. The use of the model in issue had been authorised subsequently in order to protect the fundamental interests of society, on the basis of the preliminary information submitted by AZ attesting to the applicant's predisposition to accept a bribe. They asserted that, in authorising and implementing the model complained of by the applicant, the authorities had pursued the sole aim of ‘joining’ an offence which the applicant had planned to commit with VS and AZ, who had acted on their own initiative and ‘in a private capacity’. The authorities could not be held responsible for any acts that VS and AZ had carried out before the procedure in question had been authorised.

The Government added that only AZ had acted as an undercover agent of the authorities, as the model had been authorised on his behalf. They pointed out that, before requesting authorisation, the STT had carefully verified the information submitted by AZ about the applicant's criminal inclinations and had found it to be corroborated by other data already in its possession. The investigating authorities had drawn up a precise action plan for the implementation of the model, clearly defining the nature and scope of the actions they intended to carry out. The Government stated that they were unable to provide the Court with a copy of the action plan or any other data from the STT's file on the applicant since it had been destroyed on the expiry of the five-year period laid down in the Ministry of the Interior's regulations for keeping secret files. However, they assured the Court that in all cases of this kind, the Prosecutor General or his deputy would carefully scrutinise the entire STT file on the suspect before authorising a criminal conduct simulation model.

The Government asserted that the offence would in any event have been committed without the intervention of the State authorities, since even before the model had been authorised, the applicant had clearly been predisposed to commit the offence. In support of that argument they observed that after the model had been authorised, the applicant had instantly accepted AZ's oral offer of a bribe and that the authorities had not subjected him to any threats or other forms of undue pressure. The applicant's guilt was aggravated by the fact that, as a law-enforcement official, he was perfectly aware that his actions were illegal. In conclusion, contrary to the position in the Teixeira de Castro case (cited above), there had been no incitement to break the law in the instant case.

Having regard to all these factors, the Government concluded that the applicant had had a fair trial.

The Court observes at the outset that it is aware of the difficulties inherent in the police's task of searching for and gathering evidence for the purpose of detecting and investigating offences. To perform this task, they are increasingly required to make use of undercover agents, informers and covert practices, particularly in tackling organised crime and corruption.

Furthermore, corruption — including in the judicial sphere — has become a major problem in many countries, as is attested by the Council of Europe's Criminal Law Convention on the subject (see paragraph 35 above). This instrument authorises the use of special investigative techniques, such as undercover agents, that may be necessary for gathering evidence in this area, provided that the rights and undertakings deriving from international multilateral conventions concerning ‘special matters’, for example human rights, are not affected.

That being so, the use of special investigative methods — in particular, undercover techniques — cannot in itself infringe the right to a fair trial. However, on account of the risk of police incitement entailed by such techniques, their use must be kept within clear limits (see paragraph 55 below).

In this connection, it should be reiterated that it is the Court's task, in accordance with Article 19, to ensure the observance of the engagements undertaken by the States Parties to the Convention. The admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court, for its part, must 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 of Judments and Decisions 1997-III, p. 711, § 50; Teixeira de Castro, judgment of 9 June 1998, Reports 1998-IV, p. 1462, § 34; Sequeira v. Portugal (dec.), no. 73557/01, ECHR 2003-VI; and Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004-IV). In this context, the Court's task 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.

More particularly, the Convention does not preclude reliance, at the preliminary investigation stage and where the nature of the offence may warrant it, on sources such as anonymous informants. However, the subsequent use of such sources by the trial court to found a conviction is a different matter and is acceptable only if adequate and sufficient safeguards against abuse are in place, in particular a clear and foreseeable procedure for authorising, implementing and supervising the investigative measures in question (see Khudobin v. Russia, no. 59696/00, § 135, 26 October 2006, and, mutatis mutandis, Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp. 24–26, §§ 52–56). While the rise in organised crime requires that appropriate measures be taken, the right to a fair trial, from which the requirement of the proper administration of justice is to be inferred, nevertheless applies to all types of criminal offence, from the most straightforward to the most complex. The right to the fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed for the sake of expedience (see Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, pp. 13–15, § 25).

Furthermore, while the use of undercover agents may be tolerated provided that it is subject to clear restrictions and safeguards, the public interest cannot justify the use of evidence obtained as a result of police incitement, as to do so would expose the accused to the risk of being definitively deprived of a fair trial from the outset (see, among other authorities, Teixeira de Castro, cited above, pp. 1462–64, §§ 35–36 and 39; Khudobin, cited above, § 128; and Vanyan v. Russia, no. 53203/99, §§ 46–47, 15 December 2005).

Police incitement occurs where the officers involved — whether members of the security forces or persons acting on their instructions — do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution (see Teixeira de Castro, cited above, p. 1463, § 38, and, by way of contrast, Eurofinacom v. France (dec.), no. 58753/00, ECHR 2004-VII).

In the case of Teixeira de Castro (cited above, p. 1463, § 38) the Court found that the two police officers concerned had not confined themselves ‘to investigating Mr Teixeira de Castro's criminal activity in an essentially passive manner, but [had] exercised an influence such as to incite the commission of the offence’. It held that their actions had gone beyond those of undercover agents because they had instigated the offence and there was nothing to suggest that without their intervention it would have been committed (ibid., p. 1464, § 39).

In reaching that conclusion the Court laid stress on a number of factors, in particular the fact that the intervention of the two officers had not taken place as part of an anti-drug-trafficking operation ordered and supervised by a judge and that the national authorities did not appear to have had any good reason to suspect the applicant of being a drug dealer: he had no criminal record and there was nothing to suggest that he had a predisposition to become involved in drug trafficking until he was approached by the police (ibid., p. 1463, §§ 37–38).

More specifically, the Court found that there were no objective suspicions that the applicant had been involved in any criminal activity. Nor was there any evidence to support the Government's argument that the applicant was predisposed to commit offences. On the contrary, he was unknown to the police and had not been in possession of any drugs when the police officers had sought them from him; accordingly, he had only been able to supply them through an acquaintance who had obtained them from a dealer whose identity remained unknown. Although Mr Teixeira de Castro had potentially been predisposed to commit an offence, there was no objective evidence to suggest that he had initiated a criminal act before the police officers' intervention. The Court therefore rejected the distinction made by the Portuguese Government between the creation of a criminal intent that had previously been absent and the exposure of a latent pre-existing criminal intent.

Using the same criteria, in the Vanyan judgment (cited above) the Court found a violation of Article 6 § 1 in connection with a test purchase of drugs which it found had constituted incitement. Although the operation in question was carried out by a private individual acting as an undercover agent, it had actually been organised and supervised by the police.

In the Eurofinacom decision (cited above) the Court, while reaffirming the principles set out above, held that the instigation by police officers of offers of prostitution-related services made to them personally had not in the true sense incited the commission by the applicant company of the offence of living on immoral earnings, since at the time such offers were made the police were already in possession of information suggesting that the applicant company's data-communications service was being used by prostitutes to contact potential clients.

In the case of Sequeira (cited above) the Court found that there had been no police incitement, basing its finding on the following considerations:

The Court has also held that where an accused asserts that he was incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention, all evidence obtained as a result of police incitement must be excluded. This is especially true where the police operation took place without a sufficient legal framework or adequate safeguards (see Khudobin, cited above, §§ 133–135).

Lastly, where the information disclosed by the prosecution authorities does not enable the Court to conclude whether the applicant was subjected to police incitement, it is essential that the Court examine the procedure whereby the plea of incitement was determined in each case 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 Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46–48, ECHR 2004-X, and, mutatis mutandis, Jasper v. the United Kingdom [GC], no. 27052/95, §§ 50 and 58, 16 February 2000).

It appears from the evidence in the present case that a request for authorisation to use a criminal conduct simulation model, together with a request for exemption from criminal responsibility, was made by the STT on 26 January 1999, by which time AZ had already contacted the applicant through VS and the applicant had apparently agreed to seek to have a third person acquitted in return for a bribe of USD 3,000. In the Government's submission, that sequence of events showed that VS and AZ had acted on their own private initiative without having first informed the authorities. By authorising and implementing the model, they argued, the prosecuting authorities had merely put themselves in a position to establish an offence which the applicant had already planned to commit. They had therefore not been guilty of incitement.

The Court is unable to accept such reasoning. The national authorities cannot be exempted from their responsibility for the actions of police officers by simply arguing that, although carrying out police duties, the officers were acting ‘in a private capacity’. It is particularly important that the authorities should assume responsibility as the initial phase of the operation, namely the acts carried out up to 27 January 1999, took place in the absence of any legal framework or judicial authorisation. Furthermore, by authorising the use of the model and exempting AZ from all criminal responsibility, the authorities legitimised the preliminary phase ex post facto and made use of its results.

Moreover, no satisfactory explanation has been provided as to what reasons or personal motives could have led AZ to approach the applicant on his own initiative without bringing the matter to the attention of his superiors, or why he was not prosecuted for his acts during this preliminary phase. On this point, the Government simply referred to the fact that all the relevant documents had been destroyed.

It follows that the Lithuanian authorities' responsibility was engaged under the Convention for the actions of AZ and VS prior to the authorisation of the model. To hold otherwise would open the way to abuses and arbitrariness by allowing the applicable principles to be circumvented through the ‘privatisation’ of police incitement.

The Court must therefore examine whether the actions complained of by the applicant, which were attributable to the authorities, amounted to incitement prohibited by Article 6.

To ascertain whether or not AZ and VS confined themselves to ‘investigating criminal activity in an essentially passive manner’, the Court must have regard to the following considerations. Firstly, there is no evidence that the applicant had committed any offences beforehand, in particular corruption-related offences. Secondly, as is shown by the recordings of telephone calls, all the meetings between the applicant and AZ took place on the latter's initiative, a fact that appears to contradict the Government's argument that the authorities did not subject the applicant to any pressure or threats. On the contrary, through the contact established on the initiative of AZ and VS, the applicant seems to have been subjected to blatant prompting on their part to perform criminal acts, although there was no objective evidence — other than rumours — to suggest that he had been intending to engage in such activity.

These considerations are sufficient for the Court to conclude that the actions of the individuals in question went beyond the mere passive investigation of existing criminal activity.

Article 6 of the Convention will be complied with only if the applicant was effectively able to raise the issue of incitement during his trial, whether by means of an objection or otherwise. It is therefore not sufficient for these purposes, contrary to what the Government maintained, that general safeguards should have been observed, such as equality of arms or the rights of the defence.

It falls to the prosecution to prove that there was no incitement, provided that the defendant's allegations are not wholly improbable. In the absence of any such proof, it is the task of the judicial authorities to examine the facts of the case and to take the necessary steps to uncover the truth in order to determine whether there was any incitement. Should they find that there was, they must draw inferences in accordance with the Convention (see the Court's case-law cited in paragraphs 49–61 above).

The Court observes that throughout the proceedings the applicant maintained that he had been incited to commit the offence. Accordingly, the domestic authorities and courts should at the very least have undertaken a thorough examination — as, indeed, the Constitutional Court urged in its judgment of 8 May 2000 — of whether the prosecuting authorities had gone beyond the limits authorised by the criminal conduct simulation model (see paragraph 14 above), in other words whether or not they had incited the commission of a criminal act. To that end, they should have established in particular the reasons why the operation had been mounted, the extent of the police's involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected. This was especially important having regard to the fact that VS, who had originally introduced AZ to the applicant and who appears to have played a significant role in the events leading up to the giving of the bribe, was never called as a witness in the case since he could not be traced. The applicant should have had the opportunity to state his case on each of these points.

However, the domestic authorities denied that there had been any police incitement and took no steps at judicial level to carry out a serious examination of the applicant's allegations to that effect. More specifically, they did not make any attempt to clarify the role played by the protagonists in the present case, including the reasons for AZ's private initiative in the preliminary phase, despite the fact that the applicant's conviction was based on the evidence obtained as a result of the police incitement of which he complained.

Indeed, the Supreme Court found that there was no need to exclude such evidence since it corroborated the applicant's guilt, which he himself had acknowledged. Once his guilt had been established, the question whether there had been any outside influence on his intention to commit the offence had become irrelevant. However, a confession to an offence committed as a result of incitement cannot eradicate either the incitement or its effects.

In conclusion, while being mindful of the importance and the difficulties of the task of investigating offences, the Court considers, having regard to the foregoing, that the actions of AZ and VS had the effect of inciting the applicant to commit the offence of which he was convicted and that there is no indication that the offence would have been committed without their intervention. In view of such intervention and its use in the impugned criminal proceedings, the applicant's trial was deprived of the fairness required by Article 6 of the Convention.

There has therefore been a violation of Article 6 § 1 of the Convention.

The applicant submitted that his defence rights had been infringed in that during the trial neither the courts nor the parties had had the opportunity to examine VS, a key witness. He alleged that this amounted to a breach of Article 6 § 3 (d) of the Convention.

The Government submitted that this provision did not guarantee, as such, an absolute right to examine every witness a defendant wished to call. They contended that the arguments advanced by the applicant in support of his complaint that VS had not appeared in court were not persuasive, since the trial courts had not based his conviction on the statement by VS. They added that it had been impossible to secure the attendance of VS as his place of residence was unknown. They submitted that, in any event, the applicant had had the opportunity to contest in open court the other items of evidence against him — chiefly the statement by AZ and the recordings of his conversations with the applicant — on which the courts had based their guilty verdict. The proceedings in issue had therefore complied with the adversarial principle and had not breached the Convention provision relied on by the applicant.