Last Updated on October 15, 2020 by LawEuro
Information Note on the Court’s case-law 244
October 2020
Akbay and Others v. Germany – 37273/15, 40495/15 and 40913/15
Judgment 15.10.2020 [Section V]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Non-exclusion of evidence linked to direct and indirect police incitement to commit drug offences: violation
Article 34
Victim
Relative of convict possessing moral interest in a potential Article 6 violation based on police incitement: preliminary objection dismissed
Facts – The first applicant’s husband, N.A., along with the second and third applicants, had been convicted of drug offences in the context of a drug importation operation. The domestic courts found that N.A. had been incited to commit the offence by the police and that the second, but not the third, applicant had been indirectly incited. N.A.’s and the second applicant’s sentences had accordingly been considerably reduced. The sentence imposed upon the third applicant had been generally mitigated.
Law –
Article 34:
The direct victim of the breaches of Article 6 of the Convention alleged by the first applicant was her husband, N.A. The latter had died before the application had been lodged by the first applicant. The Court therefore had to examine whether the first applicant exceptionally had standing on the basis that the actions of the authorities allegedly in breach of the Convention had had a direct effect on her own rights, because she could show a moral or material interest allowing her to lodge an application.
(a) Moral interest
A potential violation of Article 6 based on unlawful incitement to an offence that would otherwise not have been committed raised issues which went beyond purely procedural flaws resulting in a finding that the proceedings at issue had been unfair. Given that a finding of incitement must result in an exclusion of all evidence obtained thereby or similar consequences, the Court’s conclusion that there had been a breach of Article 6 on that ground would enable the person concerned to substantively challenge, at the national level, the validity of the conviction itself which had been based on such evidence.
In these circumstances, the first applicant could have a legitimate interest to seek, by means of the proceedings in question, to ultimately have N.A.’s conviction, pronounced on the basis of such evidence, set aside. N.A. had been a close relative of the first applicant, who had been convicted of a serious drug offence and had died soon afterwards, shortly before the present application had been lodged. The first applicant therefore could be considered to have a certain moral interest for the purposes of Article 34 of the Convention.
(b) Material interest
With respect to a potential compensation claim under Article 41 of the Convention in case of a finding of a breach of Article 6 in the proceedings against N.A., it could be deduced from the Court’s case-law that the necessary direct effect on an applicant’s pecuniary rights by the impugned measure must concern pecuniary rights existing at the national level. To the contrary, a potential compensation claim under Article 41, which requires the finding of a violation of the applicant’s rights in the first place, was insufficient to render the applicant a potential victim of a violation of Article 6 § 1; it only arises once there has been a breach of Article 6 § 1. Therefore, a potential compensation claim under Article 41 could not be considered as constituting a material interest which would have allowed the first applicant to bring the application on her own behalf.
(c) Issue of general interest pertaining to “respect for human rights”
The case indeed raised the question, in particular, of an incitement which had been recognised by the domestic courts and of the consequences to be drawn from a finding of incitement in order to comply with Article 6 as interpreted, in particular, in the case of Furcht v. Germany (54648/09, 23 October 2014). The main issue raised by the case brought by the first applicant therefore transcended her interests in that it concerned the legal system and practice of the defendant State.
In sum, considering the applicant’s moral interest and the presence of an issue of general interest pertaining to “respect for human rights”, the Court, making an overall assessment, considered that there had been exceptional grounds which warranted recognition of the first applicant’s victim status.
Conclusion: preliminary objection dismissed (unanimously).
Article 6 § 1:
(a) Substantive test of incitement
The domestic courts had recognised that both N.A. and the second applicant, but not the third applicant, had been incited by the police.
While N.A. had been in direct contact with the police undercover agent and the informant acting on the police’s instructions, the second and third applicants had not had any direct contact with them.
A person could be subjected to entrapment if he was not directly in contact with the police officers working undercover, but had been involved in the offence by an accomplice who had been directly incited to commit an offence by the police. The Court took into account, in this respect, whether it was foreseeable for the police that the person directly incited to commit the offence was likely to contact other persons to participate in the offence, whether that person’s activities were also determined by the conduct of the police officers and whether the persons involved were considered as accomplices in the offence by the domestic courts.
N.A. had not had any pre-existing contacts allowing him to acquire and traffic drugs. It might only have been the safe importation channel, creating a considerable incentive for drug trafficking and the importation of a large amount of drugs, and controlled fully by the authorities, which had enabled N.A. and his co-perpetrators to organise drug importation with the persons he had come to know by coincidence.
The second and third applicants had been recruited by N.A. to implement the operation. The second applicant had never been implicated in drug related issues, and the third applicant, recently convicted of drug trafficking, had not been involved in such with N.A. when the police had mounted the operation.
It had been foreseeable for the police that N.A. would contact other persons, and notably persons putting him in contact with drug suppliers, to participate in the offence. The second and third applicants had decided to contribute to N.A.’s drug importation precisely because of the seemingly safe channel created by the police, and described by N.A.
The second applicant was convicted of directly aiding and abetting N.A.’s drug offence. His activities had to therefore be considered as determined by the supply of the importation channel by the police.
Both N.A.’s and the second applicant’s offence would not have been committed without the authorities’ influence. They had been thus incited, within the autonomous meaning of the concept, as defined in the Court’s case-law under Article 6 § 1, by the police to commit the drug offence of which they were subsequently convicted.
The third applicant had been convicted for having agreed to pick up the drugs at a flat, after they had been imported via the port, taken out of the port with the help of the dock worker and taken to the flat, and transport the drugs to Berlin. Unlike the importation via the port, the police had not influenced nor been in any other way involved in these subsequent transport activities. While the third applicant was found guilty of illicit possession of the drugs entrusted to him by N.A. and of having aided and abetted N.A.’s drug trafficking, his participation and activities could not, therefore, be considered as having been determined by the conduct of the police, who had not exerted pressure on him either. The subsequent use, in the criminal proceedings against the third applicant, of the evidence obtained by the undercover measure therefore did not raise an issue under Article 6 § 1 in his respect.
(b) Procedural test of incitement
Regarding N.A. and the second applicant, the Regional Court had neither discontinued the proceedings nor excluded any evidence following the entrapment. It had only reduced their sentences in a considerable and measurable manner.
The Court held in Furcht v. Germany that all evidence obtained as a result of police incitement must be excluded, or a procedure with similar consequences must apply.
The Regional Court had used evidence directly obtained as a result of incitement, namely the testimony of the undercover agent and of the supervising police officers of the police informant and the minutes of the informant’s report. Although the Government submitted that this evidence had ultimately been used to convict N.A. and the second applicant only in so far as it had not contradicted their confessions, it appeared that both of them had not had any option, in order to reveal the true extent of the incitement, but to confess to the offence in the first place.
Since there had been a close link between the confessions that the offence had been committed and the incitement which had led to the committal of the offence, the Regional Court should have excluded not only the testimony of the undercover agent and of the supervising police officers and the minutes of the informant’s report, but also N.A.’s and the second applicant’s confession, or it should have applied a procedure with similar consequences. On appeal, the failure of the lower court to draw the necessary inferences from the incitement had been repeated by the Federal Court of Justice. While both these courts had handed down their decisions before the judgment in Furcht v. Germany, the judgment of the Federal Constitutional Court had succeeded it by several months. The Federal Constitutional Court had engaged extensively with the Court’s case-law, including Furcht v. Germany, and had sought to draw lessons for lower courts from the latter decision for the future. However, while recognising that the evidence against the second applicant which resulted from the incitement had not been totally excluded, it had sought to distinguish the case of N.A. and the second applicant from Furcht v. Germany, for which the Court could see no reason.
N.A. and the second applicant might still claim to be the victim of a violation of Article 6 § 1, as the domestic courts had not drawn the necessary inferences from their finding that they had been incited to commit an offence.
Conclusion: violation in respect of the first and second applicants, no violation in respect of the third applicant (unanimously).
Article 41: EUR 18,000 to the second applicant in respect of non-pecuniary damage
(See also Furcht v. Germany, 54648/09, 23 October 2014)
Leave a Reply