CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 octobre 2012

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display:inline-block } .s754C0169 { width:211.11pt; display:inline-block } .s115C6F62 { width:5.64pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s366C109 { width:7.3pt; display:inline-block }       FIRST SECTION                 CASE OF VESELOV AND OTHERS v. RUSSIA   (Applications nos. 23200/10, 24009/07 and 556/10)           JUDGMENT     STRASBOURG   2 October 2012   FINAL   02/01/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Veselov and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Peer Lorenzen,   Elisabeth Steiner,   Khanlar Hajiyev,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 11 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos.   23200/10, 24009/07 and 556/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Russian nationals, Mr   Viktor Sergeyevich Veselov, Mr Maksim Borisovich Zolotukhin and Mr   Igor Vyacheslavovich Druzhinin (“the applicants”), on 8 April 2010, 3   May 2007 and 12 November 2009 respectively. 2.     The applicants were represented respectively by Ms   O.O.   Mikhaylova, a lawyer practising in Moscow, Mr   G.B.   Gabdrakhmanov, a lawyer practising in Yekaterinburg, and Mr   V.G. Tuchin, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicants each alleged that they had been convicted of drug offences incited by the police in violation of Article 6 of the Convention. 4.     On 25 November 2010 the applications were communicated to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12   August 1995 (no. 144-FZ). These operations led to their criminal conviction for drug dealing. 6.     The facts of each individual criminal case, as submitted by the parties, are summarised below. The applicants disagreed with the Government on the underlying causes and the circumstances leading to the test purchases, and where this is so both versions are given. As regards the factual details of the covert operations, they are not in dispute. In particular, it is common ground that the applicants knowingly procured drugs in the course of the test purchases. A.     The application of Mr Veselov 7.     The applicant was born in 1989 and lives in Moscow. At the time of his arrest he was a third-year student at a management college. He is currently serving a prison sentence in a correctional colony. 8.     According to the Government, on 19 May 2009 a Mr X voluntarily went to the police and reported that two persons, “Viktor” (the applicant) and “Ruslan”, were selling hashish at 600 Russian roubles (RUB) per gram. 9.     According to the applicant, X was a drug addict, with a previous criminal conviction for illegal possession of drugs, and he was a police informant who had previously taken part in test purchases of drugs. To support these allegations the applicant provided a copy of the judgment against X and copies of four judgments in unrelated criminal proceedings against four different persons where X featured as the buyer in test purchases of cannabis, heroin and hashish from the accused. 10.     It is common ground, supported by the official records, that the police ordered a test purchase and proceeded with it immediately after having received the information from X. The order indicated the applicant’s name and stated that he was suspected of selling hashish at RUB 600 per gram. X phoned “Ruslan” and told him that he wished to buy hashish. The police officers were present when X was speaking to “Ruslan”, but the conversations were not recorded. X was given RUB 3,000 that had been photocopied. He met “Ruslan” later on the same night and together they met the applicant who took RUB 1,200 from them and went away to purchase the drugs. The applicant was later arrested and was found in possession of banknotes that matched the photocopied ones. Throughout the test purchase X had his mobile phone turned on with the police officer’s number dialled, which enabled the police to overhear their conversations. These communications were not recorded. Neither “Ruslan” nor the applicant’s dealer were arrested or prosecuted, allegedly on the grounds that their identities could not be established. 11.     X testified at trial that he had met the applicant and “Ruslan” at a local supermarket about two weeks before the test purchase. In the course of their conversation the applicant had told him that he could get some hashish for him. “Ruslan” had given him his phone number. X had then volunteered that information to the police and agreed to take part in the test purchase. He testified that he had not previously bought drugs from the applicant. When the defence counsel cross-examined X the court disallowed questions about his criminal record and whether he was a drug user. It also dismissed the motion to have the judgments proving that X had previously acted as a buyer in test purchases of drugs accepted as evidence. 12.     The policemen who had initiated and carried out the test purchase testified at the trial that prior to X’s information they had not known the applicant as drug dealer. They reiterated the details of the test purchase. 13.     At the trial the applicant pleaded guilty of assisting “Ruslan” in buying drugs, but claimed that it had been the result of police incitement. He claimed that he and “Ruslan” were occasional smokers of hashish but that he was not selling or otherwise supplying it to anyone. The test purchase was the first time he had agreed to help “Ruslan”, or anyone, in obtaining drugs, and he had only done so because of his insistent prompting. 14.     The person named “Ruslan” was not called to be cross-examined at the trial, allegedly because the investigating authorities had failed to establish his identity. 15.     On 15 September 2009 the Nikulinskiy District Court of Moscow found the applicant guilty of attempted illegal sale of narcotic drugs and sentenced him to four and a half years’ imprisonment. The court did not make an express assessment of the applicant’s plea of entrapment. 16.     The applicant appealed. He reiterated his plea of provocation, claiming, inter alia , that X had been a police informant and challenging the refusal of the first ‑ instance court to admit the relevant documents as evidence. He also pointed out that the police had no other information suggesting that he had previously sold drugs. He also complained that the authorities had not made any attempts to find and question “Ruslan”, who had played a key role in the test purchase and could have cast light on the extent of the provocation. 17.     On 11 November 2009 the Moscow City Court upheld the first ‑ instance judgment. It reiterated the finding that the applicant had attempted to sell the narcotic drug during the test purchase and implicitly dismissed the plea of entrapment without answering the applicant’s arguments. B.     The application of Mr Zolotukhin 18.     The applicant was born in 1982 and lives in Yekaterinburg. He is currently serving a prison sentence in Nijniy Tagil. 19.     According to the Government, on 13 June 2006 Ms Y voluntarily went to the police and reported that she was a heroin addict and that she wished to inform on her drug dealer. She said that she had been buying heroin from the applicant for a long time, but did not specify for how long. The police asked her to participate in a test purchase of drugs from the applicant, and she agreed to do so. 20.     According to the applicant, he knew Y from primary school and through his girlfriend. He knew that she was a drug user; she would occasionally offer to sell him second-hand mobile phones of unclear provenance. A few months before the test purchase she had sold him a DVD player which had later been seized by the police as a stolen item. Because of that, Y owed the applicant RUB 6,000 which she was unable to repay. On 13 June 2006 she contacted him with an offer to redeem the debt, but told him that she would only do so if he got her some heroin, of which she was badly in need. The applicant contacted an acquaintance, a drug dealer, and arranged for the quantity Y had requested. He claimed that it was the first time he had agreed to purchase drugs for Y or for anyone. 21.     It is common ground between the parties that prior to Y’s submissions the police had not been in possession of any information suggesting the applicant’s possible involvement in drug dealing. 22.     On the same day the police ordered a test purchase. The order indicated the applicant’s name and address and stated that he was suspected of selling heroin at RUB 500 per gram. Y was given RUB 3,000 in banknotes that had been photocopied. She phoned the applicant and arranged to purchase five grams of heroin. The content of the phone call, which was made from police premises and in the presence of police officers, was not recorded. The applicant met Y at the agreed place in town and she passed him the money. The police arrested the applicant on the spot. He was in possession of RUB 3,000 in banknotes that matched the ones the police had photocopied. Y handed in a packet of heroin allegedly purchased from the applicant. The applicant claimed that he had not supplied the drugs handed in by Y because he was supposed to give them to her later. 23.     After the arrest the applicant offered to inform the police on the dealer from whom he had obtained the heroin for Y and to conduct a test purchase from him, but the offer was not followed up. 24.     The case was examined at first instance by the Ordzhonikidzevskiy District Court of Yekaterinburg. At the trial the applicant pleaded partly guilty but claimed that the crime he had committed was the result of police entrapment. He pointed out, in particular, that there was no evidence of his prior involvement in drug dealing. He maintained that Y had previously asked him to buy heroin for her, knowing that he had an acquaintance who was a dealer, but he had always refused. 13 June 2006 was the first time he had agreed to help her, and this was only because she had promised to pay back her debt if he did. He claimed that her participation in the test purchase was not “voluntary”, but prompted by the police, who had manipulated her by playing on her drug addiction. 25.     Y testified at the trial that on 13 June 2006 she had voluntarily gone to the police to inform them about the applicant’s involvement in drug trafficking. She also stated that she had previously bought heroin from the applicant at least three times. 26.     The police officer who carried out the test purchase testified at the trial that on 13 June 2006 Y had voluntarily gone to the police station and reported that she was a heroin addict and that she wished to inform them that the applicant was her drug dealer. He also stated that she had collaborated with him for six months prior to the test purchase, and that she had taken part in unrelated test purchases of drugs from other persons. He further stated that prior to 13 June 2006 the police had had no information on the applicant and that the test purchase was ordered as soon as Y had reported him. She had been asked to make a phone call to the applicant immediately from the police station; when she did so she had only asked the applicant to sell her heroin, without entering into any other subjects. 27.     The court also cross-examined another policeman who had taken part in the test purchase, and read out statements given by the attesting witnesses in the investigation, in which they set out the details of the test purchase. On 28 September 2006 it found the applicant guilty of attempted illegal sale of narcotic drugs in particularly large quantities. It did not expressly refer to the applicant’s plea of entrapment, having found the fact of the sale sufficiently established and having noted the compliance of the test purchase with the procedural requirements. It considered that the applicant’s version of events, whereby he met Y because of the debt, had been refuted by other evidence. The applicant was sentenced to ten years’ imprisonment in a high-security correctional colony. 28.     The applicant appealed, pleading police incitement of the offence he was convicted of and alleging that the first ‑ instance court had incorrectly assessed the evidence. 29.     On 6 December 2006 the Sverdlovskiy Regional Court upheld the first-instance judgment. It did not address the plea of entrapment, but limited itself to finding the applicant’s conviction lawful and well-founded. C.     The application of Mr Druzhinin 30.     The applicant was born in 1977 and lives in Moscow. Trained in the past as a policeman, in 2002 he was convicted of a murder and, after his release, worked as a welder. He is currently serving a prison sentence in a correctional colony in the Republic of Mordovia following his conviction of the drug offence described below. 31.     According to the Government, on 4 September 2008 Ms Z voluntarily presented herself at the local office of the Federal Service for Drug Control ( ФКСН , the police) and reported that she was a heroin addict and that she wished to inform the authorities that the applicant was a drug dealer. The police asked her to participate in a test purchase of drugs from the applicant, and she agreed to do so. 32.     It is common ground between the parties that prior to Z’s submissions the police had not been in possession of any information suggesting the applicant’s possible involvement in drug dealing. However, the Government also claimed that this information was corroborated by a report of an officer of the Federal Service for Drug Control drawn on the same day, 4 September 2008. 33.     According to the applicant, he had known Z for about ten years through his personal contacts; he was also acquainted with a certain Ms P, also through personal contacts. From his police training with the Federal Service for Drug Control he knew that the two women were drug addicts, with criminal records related to drug dealing, and that they were police informants. On 4 September 2008 Z called him and asked for the phone number of P because she wanted to buy drugs from her; she said that she was suffering severe withdrawal symptoms and was on the verge of committing suicide. Later the same day she called him again and asked him to accompany her to the meeting with P because she feared that P would not sell to her if she was on her own. Out of compassion he agreed to go along. When the three of them met, P sold Z two grams of methamphetamine, a home-made narcotic drug produced with ephedrine and referred to throughout the proceedings by its slang name “speed” ( «винт» ). The applicant was arrested on the spot. He alleged that he did not have either money or drugs on him during the arrest, claiming that the money was planted on him during the search. He acknowledged, however, that he assisted Z in buying the “speed” but maintained that it was the first time he had done so for Z or for anyone, having succumbed to her persistent begging. 34.     The official records presented the following account of the test purchase. Having received the information from Z, the police ordered a test purchase and proceeded with it immediately. The order indicated the applicant’s name and stated that he was suspected of selling “speed” for RUB 500 per gram. Z was given RUB 1,000 in banknotes that had been photocopied. She phoned the applicant from police premises and asked him to get the drugs for her. He called her back later and they arranged to purchase two grams of “speed”. The police officers were listening when Z spoke to the applicant on the phone, but the conversations were not recorded. The applicant met Z later on the same night and together they met another person, P. When Z gave a signal to the police they arrested the applicant and took him to the police station. At the station the police examined a wallet allegedly found on him which contained RUB 1,000 in banknotes that matched the photocopied ones. Z handed in a syringe with “speed” in it, allegedly purchased from the applicant. P was also arrested, but she was released shortly afterwards and was not prosecuted. 35.     At the trial the applicant pleaded guilty of helping Z to buy drugs, but claimed that he had been induced by the police to do so and requested that the evidence relating to the test purchase be excluded. 36.     Z testified that she had volunteered information about the applicant to the police because she thought it would make it easier for her to overcome her addiction. She stated that before the test purchase she had never bought drugs from the applicant; however, since they used to buy and consume them together she told the police that she would be able to convince him to obtain the drugs for her. She further stated that she did not know if the applicant had previously sold drugs to anyone else, and she was almost certain he did not produce them himself. She also admitted that she used to buy drugs from another source. Finally, concerning the circumstances of the test purchase, she testified that she gave the money to the applicant and took the syringe from him and that she did not see P handle either the money or the syringe. 37.     The applicant requested that P be called and cross-examined, but the court noted that she had been summoned and had absconded, and that her whereabouts were unknown. The court considered this to constitute exceptional circumstances allowing it to take her written depositions into account. Despite the applicant’s objections, it read out her pre-trial statement saying that she had delivered the drugs to the agreed place at the applicant’s request, but that the sale had been arranged by him. 38.     Four police officers were cross-examined about the covert operation. They reiterated the details of the test purchase. One of them testified, when asked, that Z was not remunerated for her collaboration with the police. 39.     On 17 February 2009 the Zyuzinskiy District Court of Moscow found the applicant guilty of attempted illegal sale of narcotic drugs and sentenced him to four and a half years’ imprisonment. The sentence was increased to five years for breach of parole relating to his previous conviction. 40.     The applicant appealed, pleading police incitement of the offence he was convicted of and complaining that the first-instance court had incorrectly assessed the evidence. 41.     On 13 May 2009 the Moscow City Court examined the appeal. It dismissed the plea of entrapment, stating that the test purchase was based on the information given by Z to the police, notably that she “had previously bought drugs from the applicant on multiple occasions”, and concluded that the test purchase was therefore lawful. It upheld the first-instance judgment as well-founded. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Criminal liability for drug trafficking 42.     Article 228.1 of the Criminal Code (as in force at the material time) provided that the unlawful sale of narcotic drugs or psychotropic substances carried a sentence of four to eight years’ imprisonment; the same offence involving a large quantity of drugs or committed by a group of persons acting in conspiracy carried a sentence of up to twelve years’ imprisonment; the same offence involving a particularly large quantity of drugs carried a sentence of up to twenty years’ imprisonment (Article   228.1   § 3 (d)). 43.     On 15 June 2006 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 14) on jurisprudence in criminal cases involving narcotic drugs or psychotropic, or strong, or toxic substances. The Plenary ruled, in particular, that any sale of such substances, if carried out in connection with a test purchase under the Operational-Search Activities Act, should carry charges of attempted sale (Article 30 § 3 in conjunction with Article 228.1 of the Criminal Code). It also set out the following conditions on which the results of the test purchase could be admitted as evidence in criminal proceedings: (i) they must have been obtained in accordance with the law; (ii) they must demonstrate that the defendant’s intention to engage in trafficking of illegal substances had developed independently of the undercover agents’ acts; and (iii) they must demonstrate that the defendant had carried out all the preparatory steps necessary for the commission of the offence. B.     Investigative techniques 44 .     The Operational-Search Activities Act of 12 August 1995 (no.   144­FZ) provided as follows at the material time: Section 1: Operational-search activities “An operational-search activity is a form of overt or covert activity carried out by operational divisions of State agencies authorised by this Act (hereinafter ‘agencies conducting operational-search activities’) within the scope of their powers, with a view to protecting the life, health, rights and freedoms of individuals and citizens, or property, and protecting the public and the State against criminal offences.” Section 2: Aims of operational-search activities “The aims of operational-search activities are: – to detect, prevent, intercept and investigate criminal offences as well as searching for and identifying those responsible for planning or committing them; ...” Section 5: Protection of human rights and citizens’ freedoms during operational­search activities “... A person who considers that an agency conducting operational-search activities has acted in breach of his or her rights and freedoms may challenge the acts of that agency before a higher-ranking agency conducting operational-search activities, a prosecutor’s office or a court. ...” Section 6: Operational-search measures “In carrying out investigations the following measures may be taken: ... 4.     test purchase; ... 9.     supervision of postal, telegraphic and other communications; 10.     telephone interception; 11.     collection of data from technical channels of communication; 12.     operational infiltration; 13.     controlled supply; 14.     operational experiments. ... Operational-search activities involving supervision of postal, telegraphic and other communications, telephone interception through [telecommunications companies], and the collection of data from technical channels of communication are to be carried out by technical means by the Federal Security Service, the agencies of the Interior Ministry and the regulatory agencies for drugs and psychotropic substances in accordance with decisions and agreements signed between the agencies involved. ...” Section 7: Grounds for the performance of operational-search activities “[Operational-search activities may be performed on the following grounds;] ... 1.     pending criminal proceedings; 2.     information obtained by the agencies conducting operational-search activities which: (1)     indicates that an offence is being planned or has already been committed, or points to persons who are planning or committing or have committed an offence, if there is insufficient evidence for a decision to institute criminal proceedings; ...” Section 8: Conditions governing the performance of operational-search activities “Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning: 1.     the appearance that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory; 2.     persons who are conspiring to commit, or are committing or have committed an offence whose investigation is mandatory; ... Test purchases ..., operational experiments, or infiltration by agents of the agencies conducting operational-search activities or individuals assisting them, shall be carried out pursuant to an order issued by the head of the agency conducting operational-search activities. Operational experiments may be conducted only for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons who are planning or committing or have committed a serious crime. ...” Section 9: Grounds and procedure for judicial authorisation of operational-search activities involving interference with the constitutional rights of individuals “The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused. ... The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons. ...” Section 10: Information and documentation in support of operational-search activities “To pursue their aims as defined by this Act, agencies conducting operational-search activities may create and use databases and open operational registration files. Operational registration files may be opened on the grounds set out in points 1 to 6 of section 7(1) of this Act ...” Section 11: Use of information obtained through operational-search activities “Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...” 45.     On 24 July 2007 section 5 of the Act was amended to prohibit agencies conducting operational-search activities from directly or indirectly inducing or inciting the commission of offences. 46.     Article 125 of the Code of Criminal Procedure of the Russian Federation, in force from 1 July 2002, provided at the material time that orders of a preliminary interview officer, investigator or prosecutor that were capable of encroaching on the constitutional rights and freedoms of participants in criminal proceedings or obstructing their access to justice could be challenged before a court whose jurisdiction covered the place of the investigation. Subsequent changes in the Code added the head of the investigating authority to the list of officials whose acts could be challenged. 47.     On 10 February 2009 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 1) on the practice of judicial examination of complaints under Article 125 of the Code of Criminal Procedure of the Russian Federation. The Plenary ruled, inter alia , that decisions of officials of agencies conducting operational-search activities must also be subject to judicial review under the provisions of Article 125 if the officials were acting pursuant to an order by an investigator or the head of the investigating or preliminary inquiry authority. C.     Evidence in criminal proceedings 48.     The Code of Criminal Procedure provides, in so far as relevant: Article 75: Inadmissible evidence “1.     Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings]. ...” Article 235: Request to exclude evidence “... 5.     If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial. 49 .     Article 392 of the CCP contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances. A judgment of the European Court of Human Rights finding a violation of the European Convention on Human Rights in a case in respect of which an applicant lodged a complaint with the Court is considered to be a new circumstance warranting a reopening (Article 392 §   4 (4)). III.     COMPARATIVE LAW 50 .     The Court conducted a comparative study of the legislation of twenty-two member States of the Council of Europe (Austria, Belgium, Bulgaria, Czech Republic, Croatia, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Liechtenstein, Lithuania, “the former Yugoslav Republic of Macedonia”, Poland, Portugal, Romania, Slovenia, Spain, Turkey and the United Kingdom) concerning the use of undercover agents in test purchases and similar covert operations. 51.     The comparative study showed that in all of these countries it is possible for the police to carry out undercover operations, in particular in drug-trafficking cases, according to the procedure set out in the relevant laws and regulations. Only in Ireland is there no formal legislative or regulatory basis for the use of undercover police. A number of countries provide also for the involvement of private individuals and authorise resort to undercover agents only when the collection of evidence by other means is too complicated or impossible. 52.     Research reveals that in most of the countries covered there is exclusive or shared responsibility of the judicial bodies in the authorisation procedure, although in some the decision lies with the public prosecutor, the administrative authorities or high-level police officials. 53.     A judicial authorisation is required in Bulgaria (court), Croatia (investigating judge), Estonia (investigating judge), Greece (indictments chamber), Liechtenstein, Poland (regional court with prior agreement of the Prosecutor General), Slovenia (investigating judge), and Turkey (judge). 54.     In Austria and Belgium the authority to sanction undercover operations lies exclusively with the public prosecutor. 55.     A number of countries provide for the involvement of the prosecutor or the court, or both, depending, for example, on the type of operation or, more commonly, the stage of the proceedings. 56.     In the Czech Republic, “ fictitious transfers ”, which include test purchases, require authorisation by the public prosecutor, whereas the use of an undercover agent (in connection with particularly serious offences) can be authorised only by a High Court judge. Under German law, the use of undercover agents must be authorised by the public prosecutor, and additionally by a court if the operation targets a particular person or involves entry into private premises. In Romania also the authorisation is given by the public prosecutor, but video and audio recording during the operation requires prior authorisation by a judge. 57.     In France, the authorisation is delivered by the public prosecutor at the preliminary inquiry stage, and by the investigating judge ( juge   d’instruction ) during the pre-trial investigation. Lithuanian law, in a similar vein, requires the authorisation of a pre-trial judge during a pre-trial investigation, while at an earlier stage the authorisation of the prosecutor suffices. In “the former Yugoslav Republic of Macedonia” special investigative measures in the pre-investigation phase can be ordered either by the public prosecutor or by an investigating judge, but once an investigation has been opened the authorisation can be given only by the latter. 58.     In Portugal, covert operations within the framework of the inquiry are subject to the prior authorisation of the competent member of the Public Prosecution, with mandatory communication to the investigating judge, and are deemed to be ratified if no order refusing permission is issued within 72   hours. If the operation is carried out in the framework of crime prevention, it falls within the competence of the investigation judge to give the required authorisation at the proposal of the prosecution authorities. 59.     Spanish law also provides for notification of the investigating judge when authorisation for an undercover operation has been given by the public prosecutor. Such authorisation can also be issued directly by the judge. 60.     In Italy there is no requirement for formal authorisation from the prosecutor or a court, but the appropriate authority must give prior notification of the start of the operation to the competent prosecutor. In drug cases, before undertaking an undercover operation, the Central Directorate for Drug Services or its regional or provincial offices need to inform the prosecutor in charge of the investigations, but they do not need their formal approval. 61.     In a few countries, there is no involvement of a court or a prosecutor in the authorisation procedure. In Finland, the decision on undercover activities is taken by the Head of the National Bureau of Investigation or the Head of the Security Police, at the request of a regular police department. The decision-making bodies are separate from the services which carry out the operation. 62.     In the United Kingdom undercover operations are subject to administrative rather than judicial authorisation. In the House of Lords decision in R v.   Loosely [2001] Lord Mackay underlined that although the technique in the United Kingdom for authorising and supervising such practice was very different from the judicial supervision in continental countries, the purpose was the same, namely to remove the risk of extortion, corruption or abuse of power by policemen operating without proper supervision. The public authorities entitled to authorise the use or conduct of a Covert Human Intelligence Source (CHIS) are laid out in law. Each public authority has its own separate authorising officer. Authorising officers should not be responsible for authorising their own activities, that is, those in which they themselves are to act as the CHIS or as the handler of the CHIS. Furthermore, authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible, especially in the case of small organisations, or where it is necessary to act urgently or for security reasons. Where an authorising officer authorises his own activity the central record of authorisations should highlight this and the attention of a Commissioner or Inspector should be drawn to it during his next inspection. 63.     In Ireland similarly there is no judicial authorisation procedure. The police or other enforcement agencies both take and carry out all operational decisions concerning undercover operations. IV.     RELEVANT INTERNATIONAL LAW A.     The Council of Europe’s instruments 64.     The Council of Europe’s instruments on the use of special investigative techniques are outlined in Ramanauskas v.   Lithuania ([GC], no. 74420/01, §§   35-37, ECHR 2008-...). B.     Resolutions of the Committee of Ministers 65.     On 26   February 2001 the Committee of Ministers of the Council of Europe concluded the examination of the application no. 25829/94 in the case of Teixeira de Castro v. Portugal (9   June 1998, Reports of Judgments and Decisions 1998 ‑ IV) by adopting Resolution CM/ResDH(2001)12, which described the measures taken by the Government of Portugal to prevent future violations of Article 6 § 1 on account of the use by the police of undercover agents: “... in order to ensure that the use of undercover agents does not unduly interfere with the right to fair trial guaranteed by the European Convention on Human Rights, Article 59 of Legislative Decree No. 15/93 on the prevention of drug-trafficking has been amended by Act No. 45/1996 of 3 September 1996. According to the added paragraph 3 to Article   59, the use of such persons is subject to a court’s approval, which has to be given within 5 days and for a specific period. The Government is of the opinion that, in view of the supra-legal status of the Convention, as interpreted by the European Court of Human Rights, in Portuguese law (Constitutional Court judgments Nos. 345/99 of 15 June 1999 and 533/99 of 12   October 1999), the Portuguese courts will exercise this supervision and adapt their interpretation of the Code of Criminal Procedure (in particular of Article 126) in such a way as to avoid new violations similar to that found in the Teixeira de Castro case. In order to facilitate this adaptation, the judgment of the European Court of Human Rights has been published in the Revista Portuguesa de Ciência Criminal (RPCC 10/2000) and also disseminated to the authorities concerned, including the police.” 66.     On 10   March 2011 the Committee of Ministers concluded the execution of the judgment in the case of Pyrgiotakis v.   Greece (no.   15100/06, 21   February 2008), having adopted Resolution ResDH(2011)11 which read in so far as relevant: “The Court’s findings have been endorsed in national case-law: it is held that, in conformity with Article   6 of the Convention, the conviction of an accused should not arise solely from the conduct of a police officer involved in the case (acting as agent provocateur), otherwise the requirements of a fair trial are not met (Court of Cassation 193/2009). Furthermore, this conviction should be based on additional, strong evidence, and not only on the testimony of the police officers involved. (Court of Cassation 100/2007, Corfu Court of Appeal 29/2007).” 67.     On 2   December 2011 the Committee of Ministers concluded the execution of the judgments in the cases of in Ramanauskas , cited above, and Malininas v.   Lithuania (no. 10071/04, 1   July 2008), having adopted Resolution CM/ResDH(2011)231, which described the measures taken by the Government of Lithuania to prevent future violations of Article 6 § 1 on account of the use by the police of undercover agents: “In order to prevent similar violations, the Supreme Court set out, in its decision of 16   December 2008, the general principles with regard to cases where the criminal conduct simulation model is employed. First, the Supreme Court stressed that the criminal conduct simulation model as an investigative technique may not be employed to incite the commission of an offence but may be applied only if credible and objective information had already been obtained to the effect that the criminal activity had been initiated. Secondly, state officials may not act as private persons to incite third parties to commit an offence, while the acts of private persons acting to incite third parties to commit an offence under the control and instructions of state officials shall constitute such incitement. Thirdly, it may be inferred that there is an act of incitement even if state officials do not act in a very intensive and pressing manner, including in situations when contact with third parties is made indirectly through mediators. Fourthly, the burden of proof in judicial proceedings lies with the state authorities, which have an obligation to refute any argument raised by a defendant in criminal proceedings in respect of the incitement by state agents to commit an offence. Fifthly, once the act of incitement is established, no evidence obtained through incitement shall be admissible. The confession of an offence as a result of incitement does not eradicate either incitement or its effects. Sixthly, it is preferred that undercover techniques are supervised by a court although supervision by a prosecutor does not in itself violate the Convention. This decision of the Supreme Court is binding upon all domestic courts. Thus, it provides a clear and foreseeable procedure in similar cases.” THE LAW I.     JOINDER OF APPLICATIONS 68.     Given that the applications at hand concern similar complaints and raise identical issues under the Convention, the Court decides to join them pursuant to Rule 42 §   1 of the Rules of Court. II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 69.     The applicants complained that they had been unfairly convicted of drug offences incited by the police and that their plea of entrapment had not been properly examined in the domestic proceedings, in violation of Article 6 of the Convention. These complaints fall to be examined under Article 6 §   1 of the Convention, which reads as follows: “In the determination of ... any criminal cha