EHRM, 23-10-2014, nr. 54648/09

The applicant submitted that the criminal proceedings against him had been unfair and in breach of Article 6 § 1 of the Convention.

The applicant considered that he had been instigated by undercover agents to commit the offences he had later been convicted of. He submitted that at the time when the undercover agents started their investigations and established contacts with him, the court order of 18 October 2007 concerning their intervention had not authorised their acts against him, but had only covered S. and five other suspects. He did not have a criminal record and there had not been any suspicion of his having been involved in drug trafficking. This had expressly been confirmed by the Aachen Regional Court in its judgment.

The applicant argued that he had not been predisposed to commit drug offences. When contacted by the undercover agents, he had owned and had been running a restaurant in Aachen. The undercover agents, meeting him regularly for a long period of time, had then persistently induced him to participate in the offences at issue. After he had made numerous fruitless offers for sale of real estate to them, they had made him understand that they were interested in business of all kinds, provided that it was worth taking a high risk, which had made him reflect on drug deals. Despite the fact that he had clearly declared on 1 February 2008 not to be interested in any such business any longer, the undercover agents had re-contacted and again induced him to participate in the drug deal. The undercover agents thus had even continued inciting him to commit the offences after and despite the fact that they had achieved the aim pursued by contacting him already since January 2008, namely to establish contacts with suspect S. His only contribution to the drug deals had been to report the undercover agents' interest in buying drugs to S. and to shield off the latter against the undercover agents.

The applicant further submitted that the undercover police officers had initially acted without a court order covering their actions against him. At the time of the court order of 7 February 2008 authorising the use of undercover agents to investigate also against him, he had already retracted himself, on 1 February 2008, from further participation in offences. This had not been disclosed by the prosecution to the Aachen District Court. Therefore, it could not be said that the intervention of the undercover agents had been properly monitored by the domestic courts.

The applicant stressed that the Aachen Regional Court had expressly recognised in its judgment that he had been incited (verleitet) to commit the drug offences he had been found guilty of. In any event, the intervention of the undercover agents amounted to an undue incitement for the purposes of the Court's case-law as the agents provocateurs had raised his willingness to participate in offences.

In the Government's view, the criminal proceedings against the applicant had complied with Article 6 § 1 of the Convention. The use of the undercover investigators and of the evidence obtained as a result of their intervention had not rendered the trial against the applicant unfair.

The Government submitted, in particular, that the applicant had not been induced by the two undercover agents, within the meaning of the Court's case-law, to commit the drug offences in question. They argued that the applicant had been predisposed to commit these offences prior to the undercover agents' intervention. In particular, in a conversation with undercover agent D. on 23 January 2008, the applicant had not only mentioned his access to a group of cigarette smugglers, but had also raised himself the possibility of delivering cocaine and amphetamine and had himself proposed the quantities of drugs to be delivered. Moreover, the applicant had described himself as part of a group with S. and had been able to initiate drug deals quickly via his contacts with S. Given the amount of drugs involved, a speedy conclusion of the drug deals would not have been possible without an organised crime structure involving the applicant. Even though the applicant had not had a leading role in the negotiations of the deals, he was to receive an equal share of the profits as S. from the transactions.

Moreover, the Government considered that the undercover agents had remained essentially passive in the course of their intervention and that the applicant would also have become involved in drug deals managed by S. without their intervention. It was true that in the telephone conversation between the applicant and P. on 1 February 2008 the applicant had declared that he no longer wished to prepare a drug purchase. By re-contacting the applicant on 8 February 2008, the undercover agents had only intended passively to establish the reasons for the applicant to refrain from the drug deal. However, it had become clear in the conversation that the applicant had not been willing to generally renounce drug trafficking, but had only intended to test the undercover agents' trustworthiness. The undercover agents further left it to the applicant and S. to take the initiative in preparing the drug deals.

The Government conceded that the Regional Court had used the term ‘verleiten’ in order to describe the activities of the undercover agents. However, it became clear from the context that it had used the term in the sense of ‘encourage’. It had not meant that there had been undue incitement, inducement or instigation for the purposes of the Court's case-law. The undercover agents had not instigated the applicant to commit the drug offences because they had waited for the applicant to propose drug deals.

The Government further stressed that the involvement of the undercover agents had been ordered by a court and had been subject to permanent judicial supervision. The initial court order of 18 October 2007 authorising the intervention of undercover agents to investigate against S. and others on suspicion of drug trafficking had not covered the applicant, who had not been suspected of drug trafficking at that time. However, the court order of 7 February 2008 had extended the use of the undercover agents also against the applicant after the latter had shown interest and involvement in cigarette and drug trades.

The Court reiterates that 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, Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports of Judgments and Decisions 1998-IV; and Ramanauskas v. Lithuania [GC], no. 74420/01, § 52, ECHR 2008).

The use of undercover agents may be tolerated provided that it is subject to clear restrictions and safeguards (see Teixeira de Castro, cited above, §§ 35–36; and Ramanauskas, cited above, § 54). While the rise in organised crime undoubtedly requires that appropriate measures be taken, the right to a fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience (see Teixeira de Castro, cited above, § 36). The public interest in the fight against crime 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, inter alia, Teixeira de Castro, cited above, §§ 35–36; Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46 and 48, ECHR 2004-X; Vanyan v. Russia, no. 53203/99, § 46, 15 December 2005; Khudobin v. Russia, no. 59696/00, § 133, ECHR 2006-XII (extracts); Ramanauskas, cited above, § 54; and Bannikova v. Russia, no. 18757/06, § 34, 4 November 2010).

When faced with a plea of police incitement, or entrapment, the Court will attempt to establish whether there has been such incitement or entrapment (substantive test of incitement; see Bannikova, cited above, § 37). Police incitement occurs where the officers involved 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 Ramanauskas, cited above, § 55 with further references; and Bannikova, cited above, § 37; compare also Pyrgiotakis v. Greece, no. 15100/06, § 20, 21 February 2008). The rationale behind the prohibition on police incitement is that it is the police's task to prevent and investigate crime and not to incite it.

In order to distinguish police incitement, or entrapment, in breach of Article 6 § 1 from the use of legitimate undercover techniques in criminal investigations, the Court has developed the following criteria.

In deciding whether the investigation was ‘essentially passive’ the Court will examine the reasons underlying the covert operation and the conduct of the authorities carrying it out. The Court will rely on whether there were objective suspicions that the applicant had been involved in criminal activity or was predisposed to commit a criminal offence (see Bannikova, cited above, § 38).

The Court has found, in that context, in particular, that the national authorities had had no good reason to suspect a person of prior involvement in drug trafficking where he had no criminal record, no preliminary investigations had been opened against him and there was nothing to suggest that he had a predisposition to become involved in drug dealing until he was approached by the police (see Teixeira de Castro, cited above, § 38; confirmed in Edwards and Lewis, cited above, §§ 46 and 48; Khudobin, cited above, § 129; Ramanauskas, cited above, § 56; and Bannikova, cited above, § 39; see also Pyrgiotakis, cited above, § 21). In addition to the aforementioned, the following may, depending on the circumstances of a particular case, also be considered indicative of pre-existing criminal activity or intent: the applicant's demonstrated familiarity with the current prices for drugs and ability to obtain drugs at short notice (compare Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004-IV) and the applicant's pecuniary gain from the transaction (see Khudobin, cited above, § 134; and Bannikova, cited above, § 42).

When drawing the line between legitimate infiltration by an undercover agent and incitement of a crime the Court will further examine the question whether the applicant was subjected to pressure to commit the offence. In drug cases it has found the abandonment of a passive attitude by the investigating authorities to be associated with such conduct as taking the initiative in contacting the applicant, renewing the offer despite his initial refusal, insistent prompting, raising the price beyond average or appealing to the applicant's compassion by mentioning withdrawal symptoms (see, among other cases, Bannikova, cited above, § 47; and Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, § 92, 2 October 2012).

When applying the above criteria, the Court places the burden of proof on the authorities. It falls to the prosecution to prove that there was no incitement, provided that the defendant's allegations are not wholly improbable. In practice, the authorities may be prevented from discharging this burden by the absence of formal authorisation and supervision of the undercover operation (see Bannikova, cited above, § 48). The Court has emphasised in that context the need for a clear and foreseeable procedure for authorising investigative measures, as well as for their proper supervision. It considered judicial supervision as the most appropriate means in case of covert operations (see Bannikova, cited above, §§ 49 50; compare also Edwards and Lewis, cited above, §§ 46 and 48).

The Court is called upon to determine whether the applicant committed the drug offences he was convicted of as a result of police incitement in breach of Article 6 § 1 (substantive test of incitement). This was the case if the undercover police officers must be considered not to have investigated the applicant's activities in an essentially passive manner, but to have exerted such an influence on him as to incite the commission of drug offences he would not have committed otherwise.

Having regard to the criteria established in the Court's case-law in order to distinguish police incitement from legitimate undercover techniques (see paragraphs 49–53 above), the Court notes that at the time the applicant was first approached by the undercover agents in November 2007, there were no objective suspicions that he was involved in drug trafficking. The Aachen District Court's order of 18 October 2007 authorised criminal investigations by undercover police officers only against S. and five other persons not including the applicant. No criminal investigations were instituted against the applicant at that time. The applicant, who had no criminal record, was approached by the undercover agents not on suspicion of any involvement in drug trafficking, but because he was a good friend of the suspect S. and was therefore seen as a means to establish contacts with S.

As to the Government's argument that the applicant was nevertheless predisposed to commit a criminal offence because he had himself raised the possibility to deliver drugs, had proposed the quantities of drugs to be delivered, had described himself as part of a group with S. and had been able to initiate drug deals quickly via his contacts with S., the Court notes the following. The relevant time for determining whether there were objective suspicions that the person concerned was predisposed to commit a criminal offence is the time when the person was (first) approached by the police (see paragraph 51 above). As found above, when the undercover officers started contacting and meeting the applicant in November 2007, the investigation authorities, as clearly established by the Aachen Regional Court in its judgment, did not consider that the applicant was predisposed to traffic in drugs. It is therefore irrelevant that the Aachen District Court's authorisation extending the scope of the investigations so as to cover also the applicant (see paragraph 11 above) was based on the assumption of such a predisposition, all the more as the applicant had already explained at that moment not to be interested in any business other than the restaurant he ran (see paragraph 10 above). According to the applicant, this important information had not even been communicated to the Aachen District Court by the prosecution (see paragraph 39 above). In these circumstances, the elements mentioned by the Government cannot serve to prove that it was reasonable to conclude that the applicant was predisposed to trade in drugs.

The Court shall further examine the question whether the applicant was subjected to pressure by the undercover agents to commit the offences he was convicted of. It notes in that context that the Regional Court, having regard to the reports drawn up by the agents throughout the undercover measure and to the applicant's submissions, established that the agents had been careful not to propose concrete illegal business transactions or specific types or amounts of drugs before their respective counterparts, the applicant or S., took the first step. In that context, it is of relevance, as stressed by the Government, that the applicant was found to have raised the possibility to arrange for drugs to be sold by S., albeit in a context thoroughly prepared by the undercover agents and aimed at arriving at a sale of drugs by S. to them.

However, the Court cannot but note that on 1 February 2008 the applicant, having been called by undercover agent P., explained to the latter that he was no longer interested in participating in a drug deal. Despite this, undercover agent P. re-contacted the applicant on 8 February 2008 and persuaded him to continue arranging the sale of drugs by S. to the undercover agents. By that conduct against the applicant the investigating authorities clearly abandoned a passive attitude and caused the applicant to commit the offences. In view of the material before it, the authorities re-approached the applicant in order to make it possible to establish drug trafficking and to institute a prosecution both against the applicant, against whom a court order authorising the use of undercover agents had been obtained on 7 February 2008, and against S., with whom the authorities could only communicate via the applicant.

In the light of the above considerations, the Court concludes that the undercover measure at issue went beyond the mere passive investigation of pre-existing criminal activity and amounted to police incitement, as defined in the Court's case-law under Article 6 § 1 of the Convention. The evidence obtained by police incitement was further used in the ensuing criminal proceedings against the applicant.

The applicant took the view that his conviction had essentially been based on the evidence obtained by entrapment, which had rendered his trial unfair. In his view, it had not been sufficient that the Regional Court, in compliance with the Federal Court of Justice's well-established case-law (see paragraphs 26–31 above), had mitigated his sentence as a result of the police entrapment in breach of the Convention. Referring, inter alia, to the Court's case-law established in the cases of Teixeira de Castro (cited above) and Vanyan (cited above), he argued that the proceedings against him should have been discontinued.

The Government submitted that the use of the evidence obtained by the undercover agents at the trial against the applicant had not rendered the proceedings against him unfair. The Regional Court had considerably mitigated the applicant's sentence because, despite the fact that that court had not considered that there had been undue police incitement for the purposes of the Court's case-law, there had been an incentive for committing the offences by the State through its undercover agents. Moreover, the reports drawn up by the undercover agents had been disclosed in the criminal proceedings against the applicant. The Regional Court had examined allegations of an undue incitement made by the applicant, who had been able to exercise his defence rights in this respect.

The Court reiterates that it falls, firstly, to the national authorities to redress any violation of the Convention (see, inter alia, Siliadin v. France, no. 73316/01, § 61, ECHR 2005-VII, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 179, ECHR 2006-V). A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a ‘victim’ for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, inter alia, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; Scordino (no. 1), cited above, § 180; and Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010).

As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see Gäfgen, cited above, § 116; compare also Scordino (no. 1), cited above, § 186).

In cases of police incitement in breach of Article 6 § 1 of the Convention, the Court, in its well-established case-law, reiterates that the public interest in the fight against serious crimes, such as drug trafficking, cannot justify the use of evidence obtained as a result of police incitement (see the case-law cited above at paragraph 47). 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 or a procedure with similar consequences must apply (see Lagutin and Others v. Russia, nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, § 117, 24 April 2014 with further references).

In determining whether the domestic courts have acknowledged, either expressly or in substance, a breach of Article 6 § 1, the Court observes that in its judgment convicting the applicant of drug trafficking, the Aachen Regional Court, having established in detail the facts underlying the undercover measure, found that the applicant had been incited (verleitet) — but not instigated (angestiftet) — by a State authority to commit offences. The Regional Court based this finding essentially on the same facts on which the Court based its finding that the undercover measure at issue amounted to police incitement as defined in the Court's case-law under Article 6 § 1 of the Convention. The Regional Court stressed, in particular, the lack of suspicion of involvement in drug trafficking against the applicant prior to the undercover measure concerning him and the fact that the authorities, despite their otherwise cautious approach, re-contacted the applicant and dispersed his suspicions and fear after the latter had renounced any participation in the drug transaction (see paragraphs 16–18 above).

The Court observes, however, that in the Government's submission, the Regional Court did not mean to acknowledge, by these statements, that there had been undue police incitement for the purposes of the Court's case-law. The Court notes that the Regional Court did not expressly refer either to Article 6 § 1 of the Convention, to corresponding rights under the Basic Law or to the Federal Court of Justice's well-established case-law on undue police incitement (see paragraphs 26–31 above), which with the Regional Court's reasoning appears to be in line. Nonetheless, it considers that it can leave open the question whether the Regional Court, by its above findings, can be considered to have acknowledged in substance a breach of Article 6 § 1 in view of the following.

Even assuming an acknowledgement, by the Regional Court, of a breach of Article 6 § 1 of the Convention, the Court must further determine whether that court afforded sufficient redress for the breach of the Convention. It notes that the Regional Court expressly stated that it had been a particularly weighty factor mitigating the sentence that the applicant had been incited by a State authority to commit offences.

In determining whether a considerable mitigation of the sentence may be considered as having afforded the applicant sufficient redress for a breach of Article 6 § 1, the Court observes the following. Under the Court's well-established case-law, Article 6 § 1 of the Convention does not permit the use of evidence obtained as a result of police incitement. For the trial to be fair within that provision, all evidence obtained as a result of police incitement must be excluded or a procedure with similar consequences must apply (see paragraphs 47 and 64 above). In view of this case-law, it must be concluded that any measure short of excluding such evidence at trial or leading to similar consequences must also be considered as insufficient to afford adequate redress for a breach of Article 6 § 1.

The Court notes that in the present case the evidence obtained by police incitement was used at the applicant's trial and his conviction was based on that material. Moreover, not least in view of the importance of that material to prove the applicant guilty, the Court is not convinced that even a considerable mitigation of the applicant's sentence can be considered as a procedure with similar consequences as an exclusion of the impugned evidence. It follows that the applicant has not been afforded sufficient redress for the breach of Article 6 § 1.

The Court would add that, even though it appears plausible that the sentence imposed on the applicant for drug trafficking was considerably mitigated as a result of the police incitement, the exact reduction of the sentence was not fixed in the judgment and was thus not clearly measureable.

In view of the foregoing, the applicant may still claim to be the victim of a breach of Article 6 § 1.