CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 avril 2010

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 34225/96                       by Mohammed Halid SHAHZAD                       against the United Kingdom                              ____________         The European Commission of Human Rights (First Chamber) sitting in private on 22 October 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 1 February 1996 by Mohammed Halid SHAHZAD against the United Kingdom and registered on 18 December 1996 under file No. 34225/96;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a Pakistani national, born in 1958. He is currently detained in Albany Prison, Newport, Isle of Wight. In the proceedings before the Commission he is represented by Mr. D.J. Killeen, a solicitor practising in Birmingham.         The facts of the case, as they have been submitted by the applicant, may be summarised as follows:   A.     Particular circumstances of the case         During February and March 1991, the applicant was tried in the Southwark Crown Court, composed of a judge and a jury, of being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug, heroin, a criminal offence under section 170 para. 2 of the Customs and Excise Management Act 1979.         The prosecution's version of the facts was the following. H, a Pakistani national and an informer employed by the United States Drugs Enforcement Agency, met in Pakistan M and A who expressed the idea of importing heroin into the United Kingdom. Having consulted a British drugs liaison officer, H suggested to M and A that he knew an airline pilot who could be used as a courier. Then M and A introduced the applicant to H and all three, i.e. M, A and the applicant, intimated to H that they would supply him with drugs for the United Kingdom. A few days later the applicant suggested to H an export of drugs of his own, independently of M and A. H agreed and the applicant delivered to him 20 kgs of heroin. The heroin was transported to the United Kingdom by a British officer of the Customs and Excise. Then H went to the United Kingdom and was installed in a hotel by Customs and Excise. His telephone calls were recorded and a video camera was installed. H tried for weeks to persuade the applicant to come to the United Kingdom and receive the heroin. When the applicant agreed, a customs officer procured a visa for him. When the applicant arrived in the United Kingdom a meeting was arranged between him and H in the hotel for the delivery of the drug. The applicant was arrested while a customs officer was delivering to him a number of bags which had been made to resemble the original bags of heroin.         The applicant submits that the judge of the Southwark Crown Court did not allow his counsel to submit to the jury that the conduct of the customs officers did not amount to a fraudulent evasion.         On 7 March 1991 the applicant was found guilty and was sentenced to 20 years' imprisonment. A single judge gave the applicant leave to appeal. On 10 March 1994 the Court of Appeal rejected his appeal. It also refused the applicant leave to appeal to the House of Lords. However, it certified that certain questions of law of public importance arose.         The applicant applied and was given leave to appeal to the House of Lords by the Appeal Committee thereof.         The House of Lords pronounced on the applicant's appeal on 18 January 1996. Lord Steyn, with whom the remaining Law Lords agreed, considered the following. Lord Steyn first examined the applicant's argument that it was an abuse of process to institute criminal proceedings against him in circumstances where an informer and customs officers had by subterfuge incited him to commit the offence and had then lured him into the jurisdiction. Lord Steyn noted that counsel for the applicant had, eventually and in the light of clear precedent, accepted that there had been nothing oppressive in luring the applicant into the country. He also noted that the applicant had taken the initiative at the crucial meeting between himself and H. Moreover, the applicant was 37 years old, he was not a vulnerable and unwilling person, had been an organiser in the heroin trade and had made it clear from the start that he was ready and willing to arrange the export from Pakistan. It was, of course, true that the particular importation would not have taken place at the time and in the manner that it did without the assistance of H and the officers of Customs and Excise and that the latter gave the applicant the opportunity to commit a criminal offence. Moreover, Lord Steyn accepted that the customs officer who had brought the heroin to the United Kingdom could be assumed to be guilty of criminal behaviour. However, this did not dispose of the matter. Since in the circumstances of the case a fair trial was possible, what the judge had to determine was whether the public interest in ensuring that those who were charged with grave crimes should be tried outweighed the public interest in protecting the integrity of the criminal justice system from criminal conduct and malpractice by law enforcement agencies. Lord Steyn considered in this connection that the conduct of the customs officer was not so unworthy or shameful that it was an affront to public conscience to allow the prosecution to proceed. Any criminal behaviour of the customs officer was venial compared to that of the applicant. As a result, Lord Steyn concluded that the proceedings against the applicant need not have been stayed.         Moreover, Lord Steyn, for the same reasons, rejected the applicant's argument that the evidence of H and the customs officers should have been excluded from the trial.         As regards the applicant's third argument that he had not committed the offence with which he had been charged, Lord Steyn considered that the Court of Appeal had erred in considering that the offence of evading the prohibition, as opposed to attempting to evade the prohibition, could be committed by any conduct which was directed or intended to lead to the importation of drugs into the United Kingdom. However, Lord Steyn considered that the applicant had been guilty of attempting to evade the prohibition because he had intended to commit the offence and his actions were more than merely preparatory. Under domestic law an attempted evasion of a prohibition on importation of drugs could occur even if no importation had taken place. The applicant had already committed the attempt in Pakistan and nothing that the customs officer subsequently did could deprive the applicant's conduct of its criminal character. Moreover, the applicant had committed an attempt at evasion in England.         Lord Steyn noted that the applicant had been charged with actual rather than attempted evasion. However, the evidence was the same and the applicant's defence would not have been conducted differently if the applicant had been charged with attempt. Moreover, the prosecution had submitted before the Court of Appeal that the applicant had been at least guilty of an attempt and the House of Lords had invited oral and written submissions by both parties on this issue. In any event, section 170 para. 2 of the Customs and Excise Management Act 1979 created one single offence which could be committed in two different ways, by evasion or an attempt at evasion. As a result, Lord Steyn considered that the applicant's appeal should be rejected.   B.     Relevant Domestic Law         Section 170 para. 2 of the Customs and Excise Management Act 1979 provides as follows:         "... if any person is, in relation to any goods, in any way       knowingly concerned in any fraudulent evasion or attempt at       evasion         ...         (b)   of any prohibition or restriction for the time being in       force with respect to the goods under or by virtue of any       enactment         ...         he shall be guilty of an offence under this section and may be       detained."     COMPLAINTS   1.     The applicant complains under Article 6 para. 1 of the Convention that he could not have a fair trial because the customs officers, first, encouraged and promoted the criminal offences with which he had been charged, secondly, imported the drugs into the United Kingdom and, in this manner, created by their conduct an essential ingredient of the actus reus, without which no offence would have been committed by him and, thirdly, tricked him into the jurisdiction. He invites the Commission to consider the cumulative effect of the actions of the customs authorities.   2.     He also complains under Article 6 para. 1 of the Convention that the trial judge did not allow defence counsel to submit to the jury that the conduct of the customs officers did not amount to a fraudulent evasion.   3.     Moreover, he complains under Article 6 para. 1 of the Convention that the House of Lords, in considering that his conduct amounted to an attempt at evasion, went beyond the questions which had been certified by the Court of Appeal.   4.     Finally, the applicant complains under Article 3 of the Convention that, as a result of all the above, he had been subjected to degrading treatment.     THE LAW   1.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he could not have a fair trial because the customs officers, first, encouraged and promoted the criminal offences with which he had been charged, secondly, imported the drugs into the United Kingdom and, in this manner, created by their conduct an essential ingredient of the actus reus, without which no offence could have been committed by him and, thirdly, tricked him into the jurisdiction.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:         "In the determination ... of any criminal charge against him,       everyone is entitled to a fair ... hearing ... by (a) tribunal       established by law."         The Commission recalls that in order to determine whether the aim of Article 6 (Art. 6) - a fair trial - has been achieved regard must be had to the entirety of the domestic proceedings conducted in the case (Eur. Court HR, Imbroscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 14, para. 38; Lüdi v. Switzerland judgment of 25 June 1992, Series A no. 238, p. 20, para. 43).         As regards the applicant's submission that the customs agents, by importing the drugs into the United Kingdom, created an essential ingredient of the actus reus, without which no offence could have been committed by him, the Commission notes that the House of Lords considered that under domestic law an attempted evasion of a prohibition on importation of drugs could occur even if no importation had taken place. The House of Lords further considered that the applicant had already committed the attempt in Pakistan and that nothing that the customs officer subsequently did could deprive the applicant's conduct of its criminal character. The applicant obviously disagrees with this interpretation of the House of Lords. However, the Commission is not competent to examine alleged errors of fact or law committed by the domestic courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set out in the Convention or the Protocols to the Convention (No. 12013/86, Dec. 10.3.89, D.R. 59, p. 100). Since in the circumstances of the present case, the House of Lords' interpretation of domestic law on the particular point is not arbitrary, the Commission considers that no appearance of a violation of Article 6 para. 1 (Art. 6-1) is disclosed.         As regards the applicant's submission that the customs officers encouraged and promoted the criminal offences with which he had been charged, the Commission recalls that the conduct of prosecution authorities in the prevention and investigation of criminal offences is primarily a matter for regulation by domestic law. In particular, in the field of dangerous delinquency the prosecuting authorities may consider it necessary, in some circumstances, to rely on police informers and undercover agents. In such cases, the Commission has to determine whether the subsequent criminal proceedings, considered as a whole, were fair as required by Article 6 para. 1 (Art. 6-1). The fairness of criminal proceedings may be affected by the fact that an undercover agent of the police authorities played an important part in bringing about the offence which is the basis of the criminal charge (Radermacher and Pferrer v. Germany, Comm. Report 11.10.90, para. 75, Yearbook 34, p. 274).         In this respect the Commission notes that, as the House of Lords observed, undercover agents gave the applicant the opportunity to attempt to commit the crime of importing heroin into the United Kingdom and that the particular importation would not have taken place when and how it did without the assistance of undercover agents. However, the Commission also notes that, as accepted by the national courts, the undercover agents did not take the initiative to contact the applicant with a view to importing heroin into the United Kingdom, but only reacted to an offer by the applicant. In this respect, the applicant's case is distinguishable from Teixeira De Castro v. Portugal (Comm. Report 25.2.97, unpublished, case pending before the Court) where the Commission found a violation of Article 6 para. 1 (Art. 6-1) of the Convention because of the role played by "agents provocateurs" in bringing about that applicant's conviction. As opposed to Teixeira De Castro v. Portugal, in the present case, it has not been established that the undercover agents were the real initiators of the offences.         The Commission also notes that, as opposed to the applicant in Teixeira De Castro v. Portugal, the applicant in the present case had a long-term involvement in the heroin trade and was ready and willing to commit the crime even without the involvement of the undercover agents. Moreover, the testimony of the undercover agents did not form the exclusive basis of the applicant's conviction, which was also supported by other evidence such as tape and video recordings. In the light of all the above, the Commission considers that the role played by undercover agents in bringing about the applicant's conviction was not such as to disclose an appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         As regards the applicant's submission that he was tricked into the jurisdiction, the Commission observes that his counsel accepted before the House of Lords that there had been nothing oppressive in luring the applicant into the United Kingdom. Moreover, although H appears to have made persistent efforts to persuade the applicant to go to the United Kingdom and receive the heroin and although a customs officer procured a visa for the applicant, the applicant decided to travel to the United Kingdom on his own free will and in full knowledge of the implications that his actions could have. The Commission, therefore, considers that no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention is disclosed in this respect either.         Nor does the Commission consider that an appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention is disclosed as a result of the cumulative effect of the various actions of the undercover agents examined above. It follows that this part of the application is manifestly ill-founded and that it must be rejected as inadmissible in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the trial judge did not allow defence counsel to submit to the jury that the conduct of the customs officers did not amount to a fraudulent evasion.         The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with the matter after all domestic remedies have been exhausted. It notes that the applicant has not raised this complaint before the Court of Appeal or the House of Lords. It follows that this part of the application must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.   3.     The applicant complains under Article 6 (Art. 6) of the Convention that the House of Lords, in considering that his conduct amounted to an attempt at evasion, went beyond the questions that had been certified by the Court of Appeal.         The Commission recalls that Article 6 para. 3 (Art. 6-3-a, 6-3-b) of the Convention guarantees under (a) and (b) the right of the accused to be informed of the nature and cause of the accusation against him and the right to adequate time and facilities for the preparation of his defence. However, the guarantees in paragraph 3 of Article 6 (Art. 6-3) are specific aspects of the right to a fair trial set forth in general in paragraph 1 (see Eur. Court HR, Foucher v. France judgment of 18 March 1997, Reports 1997-II, No. 33,   para. 30). For this reason, the Commission considers it appropriate to examine the applicant's complaints under the two provisions taken together.         The Commission further notes that, although the applicant had been originally charged with evading the prohibition of importation of heroin, the House of Lords eventually considered that the applicant had been guilty of attempting to evade the prohibition. However, as the House of Lords considered, section 170 para. 2 of the Customs and Excise Management Act 1979 creates one single offence which can be committed in two different ways, by evasion or an attempt at evasion. Moreover, the House of Lords considered that the prosecution would have brought the same evidence if the applicant had been charged with attempt from the outset and that the applicant's defence would not have been conducted differently. Finally, the Commission notes that the prosecution had submitted before the Court of Appeal that the applicant had been at least guilty of an attempt and the House of Lords had invited oral and written submissions by both parties on this issue. It follows that the applicant was aware of the possibility that he might be considered guilty of attempt at evasion and that he had a full opportunity to be heard in this connection. As a result, no appearance of a violation of Article 6 para. 1 taken in conjunction with para. 3 (a) and (b) (Art. 6-1+6-3-a, 6-1+6-3-b) is disclosed.         The Commission, therefore, considers that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant complains under Article 3 (Art. 3) of the Convention that his prosecution and conviction amounted to degrading treatment.         However, the Commission considers that the applicant's complaints concerning his prosecution and conviction in principle fall to be examined under Article 6 (Art. 6) of the Convention. The Commission has found that no appearance of a violation of this provision is disclosed in the circumstances of the case. The Commission also considers that no separate issue arises under Article 3 (Art. 3) of the Convention.         It follows that this part of the application is manifestly ill- founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber