FOURTH SECTION
\nCASE OF VOINEA v. ROMANIA
\n(Application no. 64020\/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 Voinea 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. 64020\/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 a Romanian national, Mr Lucian C\u0103t\u0103linVoinea (\u201cthe applicant\u201d), on 19\u00a0November 2009.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr H. Petria-Mitran, a lawyer practising in Craiova. The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar from the Ministry of Foreign Affairs.<\/p>\n 3.\u00a0\u00a0The applicant alleged 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 1 of the Convention.<\/p>\n 4.\u00a0\u00a0On 19 May 2014 notice of the application was given to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1976 and is detained in PoartaAlb\u0103 Prison.<\/p>\n 6.\u00a0\u00a0On 19 July 2007 the authorities initiated an investigation of their own motion in connection with a network of drug dealers coordinated by C.B.S.<\/p>\n 7.\u00a0\u00a0On the same day the prosecutor\u2019s office attached to the High Court of Cassation and Justice authorised the police division responsible for combatting organised crime and drug trafficking to use an undercover agent in order to identify members of the network. The justification given for such an operation was that, on the basis of information gathered during a preliminary criminal investigation, there was a strong indication that the applicant belonged to a drug-dealing network which provided drugs such as cannabis, ecstasy and hashish to drug users known to him in Craiova.<\/p>\n 8.\u00a0\u00a0The authorisation for the operation was extended three times, on 18\u00a0August, 17\u00a0September and 16\u00a0October 2007 respectively.<\/p>\n 9.\u00a0\u00a0The interception and recording of the applicant\u2019s phone conversations was also authorised. The meetings between the applicant and the undercover agent were recorded.<\/p>\n 10.\u00a0\u00a0On 19 July 2007 the undercover agent approached the applicant, asking to buy cannabis or any other drug from him. According to the report drafted by the agent on the same day, the applicant confirmed that he had a small amount of cannabis and hashish in his possession and offered to sell it to the agent. He sold to the undercover agent on that occasion 1.59 grams of cannabis, 0.23 grams of hashish and a cigarette containing cannabis.<\/p>\n 11.\u00a0\u00a0At the undercover agent\u2019s request they met again on 25 July 2007. The undercover agent asked for more drugs. The applicant informed him that he had none, but promised to find a supplier. He subsequently bought two ecstasy pills from C.B.S. and on 27 July 2007 he met the undercover agent and sold him the pills.<\/p>\n 12.\u00a0\u00a0After the undercover agent telephoned him again requesting more drugs, the applicant bought three pills of ecstasy from N.F. and handed them over to the undercover agent on 2 August 2007.<\/p>\n 13.\u00a0\u00a0On 9 August 2007 the applicant supplied the undercover agent with 0.43\u00a0grams of cannabis.<\/p>\n 14.\u00a0\u00a0On 17 August 2007 the police officers, acting in league with the undercover agent, caught the applicant red-handed while he was selling 7.54\u00a0grams of cannabis to the undercover agent.<\/p>\n 15.\u00a0\u00a0The applicant also had in his possession five small packages of cannabis and a small envelope containing hashish.<\/p>\n 16.\u00a0\u00a0The applicant was immediately remanded in police custody. His home was searched on the same day and the police officers found 350\u00a0grams of cannabis.<\/p>\n 17.\u00a0\u00a0The applicant gave a statement in the presence of a lawyer appointed on his behalf. He pleaded guilty to the accusation of drug trafficking. The next day the applicant was questioned again in the presence of a lawyer of his own choosing. He stated that initially he had only been a user (but not a seller) of drugs. In 2003 he had decided to stop using drugs. In 2007 he had encountered some financial difficulties and had accordingly decided to sell cannabis that he had found growing wild on public spaces in Craiova and a village in the city\u2019s neighbourhood. On several occasions he had gathered the cannabis and sold it to different buyers. He also acknowledged selling hashish that he had procured from C.B.S., one of his friends. He had also sold ecstasy pills that he had obtained from N.F., a girl he had met in May\u00a02007 in a holiday resort. She had told him that she had bought ecstasy pills while living in Spain and that before returning home she had sent a parcel containing ecstasy pills to her home address. They had met again several times after the holiday and she had informed him that she could obtain more ecstasy pills from her brother, who was living abroad.<\/p>\n 18.\u00a0\u00a0Five co-defendants (who were allegedly members of the same network of drug dealers) were taken into police custody on the same day. Arrest warrants were issued in their names and their pre-trial detention for thirty days was ordered on 18 October 2007 by the Dolj County Court.<\/p>\n 19.\u00a0\u00a0On 12 September 2007 the prosecutor\u2019s office attached to the High\u00a0Court of Cassation and Justice issued an indictment naming the applicant and five co-accused, and the case was registered with the Dolj County\u00a0Court.<\/p>\n 20.\u00a0\u00a0On 17 October 2007 the prosecutor in charge decided to join the applicant\u2019s file to another criminal file concerning other offences involving drug-trafficking allegedly committed by one of the applicant\u2019s co\u2011defendants. In that file another undercover agent and his collaborator were authorised to operate.<\/p>\n 21.\u00a0\u00a0The applicant gave evidence again on 5 March 2008 before the Dolj County\u00a0Court. He partly maintained the statement that he had given earlier, during the criminal investigation. He contended that the cannabis he had gathered from the public space located near Craiova\u2019s stadium had been for his own use and not for selling. He also stated that he had not sold drugs to anyone other than the undercover agent.<\/p>\n 22.\u00a0\u00a0On 14 May 2008 the county court heard evidence from the undercover agent, in the presence of the applicant who was assisted by his lawyer. The undercover agent stated that he had been introduced to the applicant by a drug user, who had informed him that the applicant had been trying to find buyers for hashish and cannabis. He also stated that it had been the applicant who had proposed that he obtain a large quantity of ecstasy pills for him.<\/p>\n 23.\u00a0\u00a0In his last oral and written submissions the applicant\u2019s lawyer contended that the use of an undercover agent had been illegal.<\/p>\n 24.\u00a0\u00a0By a judgment of 5 September 2008 the Dolj County\u00a0Court convicted the applicant of drug trafficking under Article\u00a02 of Law\u00a0no.\u00a0143\/2000 and sentenced him to five years\u2019 imprisonment. When determining his sentence, the court \u2013 referring to Articles 74 (a) and\u00a0(c) and\u00a076 of the Romanian Criminal Code \u2013 took into account as mitigating circumstances the applicant\u2019s good behavior before and after committing the crime.<\/p>\n 25.\u00a0\u00a0The court based its findings on (i) the statements given by the co\u2011defendants, the undercover agent and witnesses, (ii) the transcripts of the recorded phone conversations, and (iii) technical and search reports. It held that the applicant\u2019s defence argument \u2013 according to which he had acted at the undercover agent\u2019s instigation \u2013 was not viable as the undercover agent had not forced the applicant to sell him drugs. He had merely called the applicant several times and asked him to sell him different drugs.<\/p>\n Moreover, the defence argument was contradicted by the statements given by the applicant during the criminal investigation and by C.B.S., one of the co-accused. Accordingly, the court concluded that the use of the undercover agent in the case had been lawful.<\/p>\n 26.\u00a0\u00a0The court furthermore noted the extensive criminal activity engaged in by the applicant\u2019s co-defendants, including C.B.S. (who provided most of the drugs that the applicant sold to the undercover agent) and imposed on them prison sentences. It also noted that the investigating authorities had found out that the cannabis sold by the co-accused had been gathered from a park located in Craiova and that it had been cultivated by C.B.S. Moreover, C.B.S. had been caught red-handed with 102 ecstasy pills when taking delivery of a parcel received by post.<\/p>\n 27.\u00a0\u00a0The applicant appealed, complaining, inter alia, that the undercover agent had overstepped the legitimate limits of investigation by influencing him and inciting him to sell drugs. He also contended that he had merely been a drug user and not a drug dealer.<\/p>\n 28.\u00a0\u00a0On 19 November 2008 the Craiova Court of Appeal allowed the applicant\u2019s appeal and partly set aside the judgment of the first\u2011instance court. It reduced the applicant\u2019s sentence to four years\u2019 imprisonment, suspended, and placed him on probation. The appeal court upheld the lower court\u2019s reasoning in dismissing the entrapment plea.<\/p>\n 29.\u00a0\u00a0The prosecutor\u2019s office and all the accused, including the applicant, lodged appeals on points of law.<\/p>\n 30.\u00a0\u00a0The applicant submitted that \u2013 as was clear from the transcripts of the recorded phone conversations \u2013 all the drug transactions had taken place at the initiative of the undercover agent. He argued that prior to 19\u00a0July 2007, when he had been approached by the latter (see paragraph 10 above), he had not been known as a drug dealer. He also claimed that even though he had been under police surveillance between July and November 2007, no buyer other than the undercover agent had been identified.<\/p>\n 31.\u00a0\u00a0The High Court of Cassation and Justice allowed the prosecutor\u2019s office\u2019s appeal and dismissed the applicant\u2019s appeal. It quashed the decision of 19\u00a0November 2008 (see paragraph 28 above) and upheld the judgment of 5\u00a0September 2008 (see paragraph 24 above). The court of last resort addressed all the arguments submitted by the applicant and his lawyer, including the matter of his having been incited by an agent provocateur. It considered the applicant\u2019s plea of entrapment to be unfounded.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 32.\u00a0\u00a0The relevant provisions of the Code of Criminal Procedure, as in force at the material time, and of Law no. 143 are set out in Constantin and Stoian v. Romania (nos. 23782\/06 and 46629\/06, \u00a7\u00a7 33-34, 29\u00a0September 2009).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 33.\u00a0\u00a0The applicant complained that his conviction for drug-trafficking had been in breach of Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 34.\u00a0\u00a0The Court notes that the application is 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 35.\u00a0\u00a0The applicant submitted that he had had no criminal record and that if it had not been for the undercover police agent\u2019s insistence, he would not have procured and sold the drugs. He also claimed that even though he had been under police surveillance no buyer other than the undercover agent had been identified. Moreover, the domestic courts had failed to give an adequate answer to the question of the authorities\u2019 responsibility for the use of entrapment in inducing him to commit a crime.<\/p>\n 36.\u00a0\u00a0The Government maintained that the actions of the undercover agent had not amounted to incitement and that the use by the national courts of the evidence obtained as a result of the operation had not been in breach of Article 6 \u00a7 1 of the Convention. They furthermore contended that the applicant had been afforded adequate procedural safeguards that had enabled him to lodge a complaint regarding the alleged incitement and that the domestic courts had thoroughly examined it in adversarial proceedings.<\/p>\n 37.\u00a0\u00a0The applicant did not submit written submissions in response to the Government\u2019s observations. He maintained his initial submissions.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n (i)\u00a0\u00a0The test of entrapment<\/p>\n 38.\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 Decisions 1998-IV, and Ramanauskasv. Lithuania[GC], no.\u00a074420\/01, \u00a7\u00a054, ECHR 2008).<\/p>\n 39.\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