Last Updated on April 24, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no.13573/14
Mohamed TEPRA
against Austria
The European Court of Human Rights (Fifth Section), sitting on 5 February 2019 as a Committee composed of:
Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
LadoChanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 8 April 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mohamed Tepra, is a Syrian national who was born in 1966 and is currently detained in Hirtenberg Prison. He was represented before the Court by Mr D. Fernández Fernández, a lawyer practising in Madrid.
2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Ministry for Europe, Integration and Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 24 April 2014 the Klagenfurt Regional Court (Landesgericht Klagenfurt, “the Regional Court”) convicted the applicant of drug trafficking pursuant to sections 4(3) and 28a(1) of the Drugs Act (Suchtmittelgesetz) and sentenced him to five years’ imprisonment. The applicant had acted together with two co-accused, who were also convicted. The applicant had imported 2,510.4 grams (g) of cocaine and 55.4 g of cannabis resin and delivered the cocaine to an undercover policeman.
5. While the applicant confessed to importing and delivering the drugs, he claimed that he was a victim of unlawful police incitement. The accounts of the parties differ in that regard:
1. The applicant’s account of the events leading up to the drug deal
6. The applicant, who lived in Madrid at the time, stated that at the end of January 2012, he had wanted to buy fake documents. To this end, a friend introduced him to a person in Vienna called Mike, who later turned out to be a police informant (Vertrauensperson). However, they never reached an agreement on the documents. About four months later, Mike contacted the applicant again and told him that he was interested in buying cocaine. The applicant maintained that he refused to participate in any drug deal, but that Mike persistently called him over the following month, trying to convince him to agree to the deal. Because of his difficult financial situation, the applicant eventually agreed to try to procure cocaine. He alleged that Mike subsequently called him almost every day asking for the drugs. At the end of September, the applicant finally told him that he might have found some cocaine sellers in Italy. The following day, the applicant was contacted by Josef, the alleged buyer, who was an undercover policeman. Josef asked the applicant to deliver ten kilograms (kg) of cocaine to Austria. On 16 October 2012 the applicant was arrested in possession of 2.5 kg of cocaine and 55.4 g of cannabis resin.
7. During the subsequent investigation, the applicant repeatedly asked the investigating judge to secure the phone records of his contact with Mike in order to prove that the initiative for the deal had mainly come from the police informant.
2. The findings of the Regional Court regarding the events leading up to the drug deal
8. The Regional Court found that at the beginning of September 2012 contact was established between a police informant, alias “Mike”, and the applicant. During the court proceedings it could not be ascertained who had initiated the contact. The court found it proven, however, that during that conversation, it was the applicant who asked Mike if he knew a buyer for a large amount of cocaine. On 11 September 2012 Mike contacted the undercover agent, Josef, in order to inform him about the offer. On 1 October 2012 the applicant called Mike and told him that he wanted to speak to the buyer, as he had 5 kg of cocaine to sell. The applicant, two co‑perpetrators and Josef met on 14 October 2012 in Villach where they handed the latter 3.8 g of cocaine as a sample. The applicant said that in the future he could secure the delivery of 10 kg of cocaine every two weeks. He also offered to sell cannabis. They agreed on 3 kg of cocaine of 80% purity for a price of 40,000 euros (EUR) per kilogram.
9. On 16 October 2012 the applicant went to Villach in order to hand over 2.5 kg of cocaine to Josef. The substance was tested by a second undercover policeman participating in the operation. Since the test result was positive, the applicant and his co-perpetrators were arrested.
3. The proceedings before the Regional Court
10. On 5 February 2013 the trial started. The phone records concerning the applicant’s contact with Mike had not been obtained because of the limited time for which phone records are saved by phone companies (six months), even though the applicant had repeatedly requested the court to secure them. The phone records for October 2012 were eventually obtained towards the end of the proceedings, but did not include the period of September 2012 when the contact was established.
11. When questioned as a witness by the court, the head of the Graz Undercover Agents Office (Verdeckte Ermittler Büro) stated that the operation was not covered by a judicial order, or by an order of the public prosecutor, because the police had considered it to be covered by Article 131 § 1 of the Code of Criminal Procedure (Strafprozessordnung, hereinafter “the CCP”; see paragraph 21 below). He had been supervising the investigation.
12. The policeman A.L., who was coordinating the undercover investigation, stated before the court that police informants may not actively instigate drug deals. Their role was limited to obtaining information and finding out structures of organised crime.
13. When witness Mike was questioned he stated, among other things, that the first time he allegedly had contact with the applicant was already in January 2012, when the latter was in Vienna to organise the logistics of drug transport. The Regional Court, however, did not make any findings in that respect in its judgment of 24 April 2014.
14. The Regional Court based the applicant’s conviction on the testimony of the two undercover policemen who had been directly involved in the deal, which was considered credible. Regarding the police informant Mike, the court held that even though it was aware that he had a previous criminal record and did receive payment for his activities as an informant, it still found him to be a credible witness because his accounts of the events in question were widely confirmed by the objective factual circumstances of the case.
15. Moreover, the Regional Court found that there had been no unlawful incitement by the police informant or the police, even though it could not be established whether it was the applicant or the police informant who had initiated the contact. It also found that the phone records of September 2012 were not of relevance as they did not reflect the content of the conversations. They only showed who called whom, and therefore could not prove whether the police informant had put any pressure on the applicant. The decisive element was rather the fact that the applicant clearly disposed of a source of supply for a substantial amount of drugs. In addition, out of his own motion he gave assurances to the undercover agent that in the future, he could regularly supply considerable quantities of drugs. This was considered a strong indication that the applicant was well connected in the drug business, as someone who has not had any contact with drug suppliers before would not be trusted with substantial amounts of cocaine of this quality (see paragraph 8 above).
16. When fixing the sentence of five years’ imprisonment, the Regional Court considered as mitigating factors the applicant’s lack of a criminal record and his partial confession. Aggravating factors were his leading role in the deal, the high quantity of illegal substances, the fact that he had committed two crimes and that two co‑perpetrators were involved.
4. The appeals proceedings
17. On 27 June 2013 the applicant, represented by counsel, lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against the sentence (Berufung). In his plea of nullity, he asserted that the testimony of the police informant and the undercover police officer was contradictory regarding the establishment of the contact. In his statement, the undercover police officer, Josef, said that Mike had informed him about the applicant in September 2012, while Mike conceded during the trial that he had already met the applicant in January and March 2012. Therefore, in the applicant’s view, Mike was not a credible witness. The applicant alleged that he only agreed to supply drugs after intense pressure from Mike. He argued that these facts indicated that there had been an unlawful incitement. In his appeal against the sentence, the applicant complained, inter alia, that the Regional Court had not taken into account as a mitigating factor that the offences had been prompted by the police informant and the undercover agent.
18. On 5 November 2013 the Supreme Court (ObersterGerichtshof) dismissed the applicant’s plea of nullity. It found that the Regional Court had convincingly argued that the police informant had merely acted in a passive manner and therefore concluded that there was no unlawful police incitement.
19. On 18 December 2013 the Graz Court of Appeal (Oberlandesgericht), referring to the reasoning of the Regional Court, dismissed the applicant’s appeal against his sentence and affirmed that there had been no incitement. It held that the alleged contradictions should have been raised before the Regional Court and stressed that the phone records did not support the applicant’s claim of entrapment as they did not reflect the content of the conversations.
20. The judgment was served on the applicant’s counsel on 6 February 2014.
B. Relevant domestic law
21. The provisions of the CCP, in their relevant parts and as in force at the relevant time, read as follows:
Article 5
“…
(3) It is inadmissible to incite accused or other persons to engage in, continue or complete a criminal offence, or to allure them through secretly designated persons to make a confession.”
Article 131
“(1) Undercover investigations are permitted if they appear necessary for the investigation of a criminal offence.
(2) A systematic undercover investigation, stretching over a longer period of time, is only permitted if the investigation concerning an intentional crime punishable by imprisonment of a minimum of one year, or the prevention of a criminal offence planned within the framework of a terrorist group or a criminal organisation (Articles 278 to 278b of the Criminal Code) would otherwise be significantly impeded. Insofar as this is imperative for the investigation or prevention, it may also be permitted to produce documents faking the identity of criminal police staff, and to use them in legal relations for the fulfilment of investigation purposes (pursuant to Article 54a of the Police Security Act).
(3) The undercover investigator is to be instructed and regularly monitored by the criminal police. His mission and its specific circumstances as well as information and statements obtained through him shall be registered in a report or official memorandum (Amtsvermerk), provided they might be relevant for the investigation.”
Article 132
“The realisation of a fictitious transaction shall be permitted if the investigation of a criminal offence or the seizure of objects or assets that originate from a criminal offence or that face the risk of confiscation or forfeiture would otherwise be significantly impeded. Under these preconditions, it shall also be permitted to contribute to a fictitious transaction realised by third parties.”
Article 133
“…
(3) The criminal police may conduct on its own surveillance under Article 130 § 1, undercover investigations under Article 131 § 1 as well as fictitious transactions under Article 132 concerning the seizure of drugs or counterfeit money. The conclusion of other fictitious transactions, as well as surveillance under Article 130 § 3 and undercover investigations under Article 131 § 2 are to be ordered by the Public Prosecutor’s Office.
…”
COMPLAINT
22. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unfair, in that the offences of which he was convicted would not have taken place without the authorities’ unlawful incitement. In addition, he complained that the undercover operation had not been in accordance with the law, as it was not ordered by a court or a public prosecutor.
THE LAW
23. Article 6 § 1 reads as follows in its relevant parts:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
A. The Government’s objection relating to the exhaustion of domestic remedies
24. The Government asserted that the application should be declared inadmissible for non-exhaustion of domestic remedies, as the applicant had failed to lodge an application for the renewal of criminal proceedings pursuant to Article 363a of the CCP. By referring to the Supreme Court’s established case-law, beginning with its ruling of 1 August 2007 (no. 13 Os135/06m), the Government argued that an application for the renewal of proceedings under Article 363a of the CCP has been recognised by the Court as an effective remedy at domestic level within the meaning of Article 13 of the Convention.
25. The applicant contended in reply that the proposed course of action did not amount to an effective remedy as it would not have addressed the issues he raised before the Court. He stressed that he has fulfilled his obligation to exhaust domestic remedies by lodging a plea of nullity and an appeal against sentence before the Supreme Court.
26. The Court has already had the opportunity to consider the effectiveness of an application for the renewal of the proceedings under Article 363a of the CCP in its decision ATV Privatfernseh-GmbH v. Austria (dec.) (no. 58842/09, 6 October 2015). However, this remedy only applies to certain types of proceedings where it is not foreseen in domestic law that the Supreme Court be seized (see ibid., §§ 18-22). In fact, the Supreme Court itself has stated in its case-law that an application under Article 363a of the CCP per analogiam was only admissible in cases where the court “had not been given the opportunity to fulfil its function as the highest instance in criminal matters as foreseen by Article 92 of the Federal Constitution” (see ibid., § 19, and the quotation therein of Supreme Court judgment of 1 August 2007, case no. 13 Os 135/06m).
27. In the instant case, the CCP had foreseen the possibility for the applicant to lodge a plea of nullity with the Supreme Court, of which he has made use. According to the information available, an application under Article 363a of the Code of Criminal Proceedings was not admissible after the Supreme Court’s decision on the applicant’s plea of nullity. Furthermore, the Government has not shown that the Supreme Court has examined a renewal request on the merits in comparable cases. The Court therefore concludes that a request under this provision was not accessible to the applicant and rejects the Government’s objection in that respect (see Batista Laborde v. Austria (dec.), no. 41767/09, 2 February 2016).
B. The applicant’s plea of incitement and related complaints
28. The applicant complained that, even though the Regional Court had expressly acknowledged that it could not be determined who had initiated the contact, this circumstance was used to his detriment. It would have been the prosecution’s task to prove that there had been no unlawful incitement to the crime. The applicant’s petitions for obtaining the telephone records were repeatedly refused, which violated his right to a fair trial, as he had no other means to prove that it had in fact been Mike contacting him, and not the other way round.
29. The applicant maintained that the crime of which he had been convicted would not have been committed without the intervention of the police informant, Mike, and the undercover agent, Josef. He complained that their statements were given more credibility by the domestic courts than his. He added that he did not have a prior criminal record, and that there were no objective suspicions that he had any tendency to participate in drug trafficking before the contact with Mike and Josef was made. It took him about one month to find the drugs, which demonstrated that he did not have immediate access to them.
30. Lastly, the applicant maintained that the undercover operation had been unlawful as it had not been ordered by a judge or a public prosecutor, but had been ordered and conducted solely by the criminal police.
31. The Government submitted that the Regional Court had carried out a detailed and thorough assessment of the evidence when examining the applicant’s plea of incitement. Having gained a personal impression of the witnesses, it found the statements of police informant Mike and undercover agent Josef more credible than those of the applicant. The applicant had been able to procure a substantial amount of cocaine of good quality within a short period of one month, he was well aware of the prices usually paid on the market, and he gave assurances that in the future, he could regularly supply considerable quantities of drugs, all of which were strong indications that the applicant had a predisposition for committing the crimes of which he was convicted. Moreover, the applicant brought with him a sample of cocaine to the first personal contact meeting with Josef, which was usual for such deals, and took various safety measures during the deal, such as driving around at first to make sure they were not followed. In addition, as Mike had testified (see paragraph 13 above), the applicant had been looking for a drug distribution network as early as in January 2012. The Regional Court therefore concluded that the applicant would have committed the crimes even without their activities, which was confirmed by the appellate courts.
32. Turning to the alleged unlawfulness of the undercover operation, the Government explained that only those undercover investigations which are carried out over a longer period of time had to be ordered by the public prosecutor’s office (Article 131 § 2 of the CCP). This covers only methodical and structured approaches which are part of a long-term concept. The investigation at issue did not fall into that category and it had therefore been lawful for the criminal police to base it on Article 131 § 1 of the CCP.
33. The Court reiterates that there is a substantial amount of case-law on the question of the compatibility with Article 6 § 1 of the Convention of criminal proceedings following the use of undercover agents who (allegedly) incited the person concerned, by an investigative measure, to commit the criminal offence of which that person was later found guilty (see, inter alia, Teixeira de Castro v. Portugal, 9 June 1998, Reports of Judgments and Decisions 1998-IV; Vanyan v. Russia, no. 53203/99, 15 December 2005; Ramanauskas v. Lithuania [GC], no. 74420/01, ECHR 2008; Bannikova v. Russia, no. 18757/06, 4 November 2010; Lalas v. Lithuania, no. 13109/04, 1 March 2011; Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, 2 October 2012, Davitidze v. Russia, no. 8810/05, 30 May 2013, Furcht v. Germany, no. 54648/09, 23 October 2014, and Matanović v. Croatia, no. 2742/12, 4 April 2017).
1. Substantive test of incitement
34. When faced with a plea of entrapment by “agents provocateurs”, the Court, at the outset, must assert itself that the case fell, prima facie, within the category of “entrapment cases” (see Matanović, cited above, § 131). In the instant case, the Court considers from the facts of the case that the applicant did have an arguable complaint in that regard.
35. Next, the Court must establish whether there had been entrapment/incitement in breach of Article 6 § 1 of the Convention, as opposed to the use of legitimate undercover techniques. It has to establish, to that end, whether the offences at issue would have been committed without the authorities’ intervention (see, in particular, Bannikova, cited above, §§ 36-37). Police incitement occurred when the undercover agent did not remain essentially passive, but exerted such an influence on the person concerned as to incite the commission of the offence that would otherwise not have been committed. Relevant factors include, in particular, the question of whether there were objective suspicions that the person concerned had previously been involved in criminal activity and whether that person was subjected to any pressure to commit the offence (see Bannikova, cited above, §§ 37-50).
36. The Court notes, on the latter point, that the applicant had no previous criminal record, no investigation against him had previously been opened and that he was previously unknown to the police officers (compare Teixeira de Castro v. Portugal, cited above, §§ 37-38). However, the applicant’s ability to obtain drugs in substantial quantity at short notice like in the instant case, has in the past been considered by the Court to be an indication of a pre-existing criminal activity or intent (Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004 IV). Moreover, the applicant evidently was familiar with current prices of drugs as well as the modus operandi of drug deals.
37. With regard to police informants, the Court notes that their involvement is not excluded from the examination of the question of whether there has been unlawful incitement. To the contrary, if the actions of the informant, irrespective of whether he or she was employed by the State or a private person assisting the authorities, constituted entrapment, the Court may find a violation of Article 6 § 1 of the Convention (Ramanauskas v. Lithuania [GC], cited above, § 73).
38. In the present case, the domestic courts could not establish with certainty what exactly happened at the initial stage of contact between the police informant and the applicant. There were, however, substantial indications that the applicant did have a pre-existing inclination to commit drug deals. Since there is no clear outcome under the substantive test for entrapment, the Court therefore proceeds to examine under the so-called procedural test the way the domestic courts dealt with the applicant’s plea of incitement.
2. Procedural test of incitement
39. The Court has emphasised, in a number of cases, the role of domestic courts in dealing with criminal cases where the accused alleges that he was incited to commit an offence. Any arguable plea of incitement places the courts under an obligation to examine it and make conclusive findings on the issue of entrapment, with the burden of proof on the prosecution to demonstrate that there was no incitement (see Ramanauskas v. Lithuania [GC], cited above, §§ 70-71, and Khudobin v. Russia, no. 59696/00, §§ 133-135, ECHR 2006‑XII (extracts)). An adversarial, thorough, comprehensive and conclusive procedure on the issue of entrapment is required (see for the criteria in detail Bannikova, cited above, §§ 51-65, with further references).
40. In the present case, the Court considers that the domestic courts duly addressed the applicant’s incitement plea and took evidence on the alleged influence of the police informant. The applicant was able to raise the issue of incitement effectively during his trial. From the very beginning of the proceedings he requested the court to obtain the phone records covering the beginning of the contact between the police informant and himself, so he could prove his version of the events, namely that it was allegedly the undercover agent who had constantly contacted him, not the other way round. However, the Regional Court argued that even if the phone records had been obtained, they would not have been able to prove who had made the proposal of the drug deal, as the content of the conversations was not on record, but only the call logs. More importantly, the court found it decisive that the applicant clearly disposed of a source of supply for a substantive amount of drugs, which he offered to deliver regularly over an extended period of time. This was considered a strong indication that the applicant was well connected in the drug business, as otherwise he would not have been entrusted with such a substantial amount of cocaine of very good quality (see paragraph 15 above). The Court cannot but endorse these findings.
41. On the question of who had first proposed the drug deal – the applicant or the police informant, Mike – the Court notes that the Austrian courts had to assess the credibility of all persons involved and came to the conclusion that they did not believe the applicant’s account of the events, which they are in a much better position to examine because of their direct and personal impression of the persons involved.
42. In that context, the Court reiterates that while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. In principle, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (De Tommaso v. Italy [GC], no. 43395/09, § 170, 23 February 2017). The Court finds no indication to that end when it comes to the domestic courts attaching more credibility to the police informant and the undercover agent’s statements than to that of the applicant.
43. The Court concludes that the applicant’s plea of incitement was adequately addressed by the Austrian courts, which took the necessary steps to uncover the truth and to dispel the doubts as to whether the applicant had committed the offence as a result of incitement by an agent provocateur. Their finding that there had been no entrapment was based on a reasonable assessment of evidence that was relevant and sufficient. The Austrian courts took all possible steps to verify that the acts imputed to the applicant did not result from unlawful actions on the part of the investigative authorities (compare, among many other authorities, most recently Prostotin and Others v. Russia (dec.), no. 43709/12 and others, 13 September 2018).
44. Having regard to the scope of the judicial review of the applicant’s plea of incitement, the Court finds that the applicant’s complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 (see, for a similar reasoning, Bannikova v. Russia, cited above, §§ 74-79).
45. When it comes to the applicant’s complaint that the police operation had not been lawful, the Court has emphasised in its case-law the need for a clear and foreseeable procedure for authorising investigative measures, as well as for their proper supervision. It has considered judicial supervision as the most appropriate means in cases involving covert operations. A lack of procedural safeguards in the ordering of an undercover operation has been found to generate a risk of arbitrariness and police entrapment (see Matanović, cited above, § 124; Furcht, cited above, § 53; see also Bannikova, cited above, §§ 37-50, with further references).
46. Turning to the particular facts of the instant case, however, the Court sees no reason to depart from the domestic authorities’ conclusion that the undercover operation had been lawful, as it was covered by Article 131 § 1 of the CCP which the Court considers to be a sufficient legal basis for the police operation in question. Moreover, judging from the documents and information at hand and the parties’ statements, the Court takes the view that the operation was not of such extent that it would have necessitated prior authorization of a court or a public prosecutor, also because there were sufficient safeguards in place, such as a senior police officer supervising the operation (see paragraph 11 above; compare Mills v. Ireland (dec.), no. 50468/16, § 22, 10 October 2017). The respective complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 February 2019.
Milan Blaško Yonko Grozev
Deputy Registrar President
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