FOURTH SECTION
\nCASE OF URSU v. ROMANIA
\n(Application no. 44497\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n18 December 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Ursu v. Romania,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Paulo Pinto de Albuquerque, President, Having deliberated in private on 27 November 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 44497\/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by aRomanian national, Mr R\u0103zvanBogdan Ursu (\u201cthe applicant\u201d), on 10\u00a0August 2009.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A.Hahui, a lawyer practising in Constan\u0163a. The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, MsC. Brumarfrom the Ministry of Foreign Affairs.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that the criminal proceedings against him had been unfair because he had been convicted of an offence committed under police incitement. He relied on Article 6 \u00a7\u00a7 1 and 3\u00a0(d) of the Convention.<\/p>\n 4.\u00a0\u00a0On 20 November 2013 the complaints underArticle 6 \u00a7\u00a7 1 and 3\u00a0(d) of the Convention were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054 \u00a7\u00a03 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1983 and lives in Bucharest.<\/p>\n 6.\u00a0\u00a0According to a police report drawn up on 21 June 2005, the police division responsible for fighting organised crime and drug trafficking (\u201cthe police\u201d) received information from an undisclosed source that an individual called \u201cUrsu-Degweed\u201dwasa member of a network of dealers that was trafficking drugs in Constan\u0163a.<\/p>\n 7.\u00a0\u00a0The police initiated an investigation of their own motion. On 21\u00a0June\u00a02005 the prosecutor authorised the use of an undercover police agent, who was to be helped by a police informer, D., to follow a lead regarding the applicant\u2019s alleged criminal activities. At the time of the events, the applicant was a student;D. was an acquaintance of the applicant, studyingat the same university.<\/p>\n 8.\u00a0\u00a0D. called the applicant and asked him to provide her with some drugs. She informed him that a common friend, L., could help him to find a dealer, set the price for the drugs and sent the money by mail (postal order) on 23\u00a0June 2005.<\/p>\n 9.\u00a0\u00a0On 25 June 2005 the applicant called D. and set up a meeting at the Constan\u0163a railway station for the same day. The applicant was accompanied by three friends. At about 11.45 p.m., while he was waiting for D.at the railway station, police officers from Constan\u0163a Police, acting in league with the undercover agent and D.,approached him. They searchedthe applicant and found eighteenecstasy tablets and 0.46 grams of cannabis resin in his possession.<\/p>\n 10.\u00a0\u00a0In his first statement to the police, given on 26 June 2005, the applicant disclosed that the dealer who had sold him the drugswas called B. and helped the police to set up an operation to catch him in the act of committing a crime.<\/p>\n 11.\u00a0\u00a0The applicantalso stated that D. had called and had askedhim to buy twentyecstasy tablets for her. She had sent the money for the drugs by post and had informed him that a common friend, L., could help him to find a dealer. L. had given him the number of a dealer, B., who had sold himseventeentablets. He had received two tablets as a gift; he had kept one for himself and had given the other one in exchangefor the cannabis resin, found in his possession at the search. He intended to spend his holidays in Constan\u0163a with his friends at D.\u2019s invitation. D.had also promised to offer him accommodation.<\/p>\n 12.\u00a0\u00a0The applicant maintained his allegations in a statement given in the presence of two lawyers of his choice on 19 July 2005. He added that he had accepted to provide D. with the ecstasy tablets in the hope of having an intimate relationship with her during his stay in Constan\u0163a.<\/p>\n 13.\u00a0\u00a0On 25 July 2005 the prosecutor\u2019s office committed the applicant for trial on charges of drugtrafficking, in violation of Law no. 143\/2000 on the fight against drug trafficking and illegal drug use (hereinafter \u201cLaw\u00a0no.\u00a0143\u201d \u2013 see paragraph 22 below).<\/p>\n 14.\u00a0\u00a0Several hearings were held before the Constan\u0163a County Court. The applicant denied his involvement in drug trafficking and claimed that he had been entrapped by the police. His lawyers insisted on the importance of hearing evidence from D.<\/p>\n 15.\u00a0\u00a0On 5 June 2007 the Constan\u0163aCounty Court convicted the applicant of drug trafficking and sentenced him to one and a half years\u2019imprisonment suspended on probation. The court dismissed his allegations that he had been entrapped. It confined itself in noting that the activity of the informer, D.,had been lawful,without referring to the question whether she had been authorisedto act as an undercover agent. The relevant part of its reasoning read as follows:<\/p>\n \u201cThe applicant\u2019s argument that the informer, D.,had incited him to commit the offence could not be retained. The court notes the applicant\u2019s recruitment activity in bars in Constan\u0163a, the undercover informerbeing a simple client among other clients. The activity performed by the undercover informerwas in line with Law\u00a0no.\u00a0143\/2000.\u201d<\/p>\n 16.\u00a0\u00a0The Constan\u0163a County Courtdid not provide any reasons justifying the fact that, in spite of the applicant\u2019s insistence, D. had not been heard. In convicting the applicant,it relied on his own statements, corroborated by the statements made by the friends who had accompanied him on his trip to Constan\u0163a on 25 June 2005, as well as on reports produced by the undercover agent and the police following the police operation organised on 25\u00a0June 2005 when the applicant had been caught in the act of committing a crime.<\/p>\n 17.\u00a0\u00a0The applicant appealed against the judgment of 5 June 2007. His lawyers reiterated that he had been entrapped by the police and that D. should be heard by the court. They also claimed that D. had not been authorised to be part of the undercover operation.<\/p>\n 18.\u00a0\u00a0On 22 October 2008 the Constan\u0163a Court of Appeal noted that D. had never given evidence as a witness before the investigating authorities and that her name had only been mentioned in the reports drafted by them. Accordingly,her previous statements could not be read in open court pursuant to Article 327 \u00a7 3 of the CCP (see paragraph 23 below).<\/p>\n 19.\u00a0\u00a0On 24 October 2008 the court dismissedthe applicant\u2019s appeal and upheld the County Court\u2019s findings. Without providing any additional reasons,the courtsimply reiterated that the evidence obtained by using an undercover agent was in accordance with Law no. 143. It did not refer at all to the applicant\u2019s argument that D. had not been heard.<\/p>\n 20.\u00a0\u00a0The applicant lodged an appeal on points of law, reiterating his complaints. He claimed that he had been unduly incited by D. to commit the offence of which he had been found guilty and that throughout the proceedings he had not had an opportunity to have her questioned.<\/p>\n 21.\u00a0\u00a0In a final decision of 4 March 2009 the High Court of Cassation and Justice dismissed the applicant\u2019s appeal as ill-founded. It upheld the reasoning of the two lower courts.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC AND INTERNATIONAL LAW<\/p>\n 22.\u00a0\u00a0The relevant provisions of the former Criminal Procedure Code (\u201cCCP\u201d) and the relevant provisions of Law no. 143\/2000 on combating drug trafficking are described in Constantin and Stoian v.\u00a0Romania (nos.\u00a023782\/06 and 46629\/06, \u00a7\u00a7 33 and 34, 29 September 2009).<\/p>\n 23.\u00a0\u00a0Article 327 \u00a7 3 of the CCP provided that when it was impossible for a court to hear a witness it should read out his or her testimony given at the pre-trial stage of the proceedings and take it into consideration when examining the case.<\/p>\n 24.\u00a0\u00a0Relevant Council of Europe and other international conventions concerning special investigation techniques are described in Ramanauskas v.\u00a0Lithuania ([GC], no. 74420\/01, \u00a7\u00a7 35-37, ECHR 2008).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6OF THE CONVENTION<\/p>\n 25.\u00a0\u00a0The applicant complained that he had not received a fair trial in the criminal proceedings against him, in particular as he had been convicted of drug offences which he had been incited to commit, and essentially on the basis of evidence obtained by that entrapment operation. He relied on Article\u00a06 \u00a7\u00a7 1 and 3 (d) of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal…<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights …<\/p>\n (d)\u00a0\u00a0to 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 …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 26.\u00a0\u00a0The Court notes that thesecomplaintsare not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n (a)\u00a0\u00a0The applicant<\/p>\n 27.\u00a0\u00a0The applicant submitted that he had not been involved in drug trafficking and that the only reason for buying the eighteenecstasy tablets was the insistence of the police informer, D., who had not only sent the money to buy them but had also indicated the person from whom he might buy them.<\/p>\n 28.\u00a0\u00a0The applicant also complained that D. had never been heard by any of the domestic authorities, despite the specific requests of his lawyers.<\/p>\n (b)\u00a0\u00a0The Government<\/p>\n 29.\u00a0\u00a0The Government denied that there had been police entrapment in the case. They explained that the police had identified an organised crime group, and that the role of the undercover agent and the police informer, D., was to confirm those findings. D. had remained passive and had not exerted any pressure on the applicant.<\/p>\n 30.\u00a0\u00a0The Government further argued that the domestic courts had thoroughly examined the applicant\u2019s allegation of entrapment and that his conviction had not been based to a decisive extent on evidence given by D. The courts had relied primarily on the admissions of the applicant himself, as well as on the reports drafted by the police. Moreover, the applicant had failed to indicate to the courts which aspects he had considered required elucidation by hearing D.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 31.\u00a0\u00a0In the specific context of investigative techniques used to combat drug trafficking and corruption, the Court\u2019s long-standing view has been that, 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 v.\u00a0Portugal, 9 June 1998, \u00a7\u00a7 35-36 and 39, Reports of Judgments and Decisions1998-IV, and Ramanauskasv. Lithuania[GC], no.\u00a074420\/01, \u00a7\u00a054, ECHR 2008).<\/p>\n 32.\u00a0\u00a0In its extensive case-law on the subject, the Court has developed the concept of entrapment in breach of Article 6 \u00a7 1 of the Convention, as distinguished from the use of legitimate undercover techniques in criminal investigations. It has held that while the use of special investigative methods \u2013 in particular, undercover techniques \u2013 cannot in itself infringe the right to a fair trial, the risk of police incitement entailed by such techniques means that their use must be kept within clear limits (see Ramanauskas, cited above, \u00a7\u00a051).<\/p>\n
\nEgidijus K\u016bris,
\nIulia Antoanella Motoc, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n