CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 février 2016

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De Gaetano,   Nona Tsotsoria,   Paulo Pinto de Albuquerque,   Krzysztof Wojtyczek,   Egidijus Kūris,   Gabriele Kucsko-Stadlmayer, judges, and Françoise Elens-Passos, Registrar , Having regard to the above application lodged on 30 July 2009, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant’s, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Osvaldo Marcelo Batista Laborde, is a Uruguayan national, who was born in 1966 and lives in Graz. He is represented before the Court by Mr K. Bernhauser, a lawyer practising in Vienna. 2.     The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. A.     The circumstances of the case 3.     On 31 January 2008 the Graz Regional Court ( Landesgericht für Strafsachen Graz ) convicted the applicant of partly attempted and partly realised drug trafficking and sentenced him to twelve and a half years’ imprisonment. 4.     He was found, together with L.V., to have assisted in the shipment of more than 270 kilograms of cocaine from Callao in Peru. The transport route via the Bahamas, the United States of America, Belgium and Germany to Austria had only been interrupted as a result of the seizure of the drugs by the US authorities in the port of Charleston. 5.     The applicant was also found to have organised the shipment, once again together with L.V., of a further 140 kilograms cocaine from Callao, via the Dominican Republic, the Bahamas, the United States of America and Belgium to Bremerhaven in Germany, with the onward transportation by road to Austria being organised by investigators from the Austrian Ministry for Interior Affairs. Finally, the applicant and L.V. were found to have attempted by means of those shipments to supply the above-mentioned quantities of illegal substances to contacts in Europe for further distribution. 6.     According to the reasoning of the judgment of the Graz Regional Court, the applicant was the contact person of the South American cocaine sellers’ group which entered into business with a Serbian-Montenegrin buyers’ group with L.V. as mediator. L.V. was known to the US Drugs Enforcement Administration (DEA) and an informant (“Marc”) was placed close to L.V. by the US authorities. Marc was well known to the authorities and had had business dealings with L.V. in the past. He was not a police officer but was supervised by special agent S.F. of the DEA. He had also worked for the DEA and the Austrian authorities in a coordinated operation between 2001 and 2003 to uncover international drug trafficking in Eastern Europe through Austria. Due to the conduct of Marc, authorities learned in December 2003 that L.V. had contacted an international group that was interested in establishing a European infrastructure through which to traffic counterfeit cigarettes and cocaine. The information included details of possible quantities and routes. L.V. was looking for somebody who could provide the transport and the storage of the cocaine from Germany, where the drugs should be unshipped, to Croatia. Austrian authorities were asked by the DEA if they would provide these services to L.V. in the course of an undercover operation. Between December 2003 and February 2004, the Austrian police authorities initiated undercover investigations, primarily into the European partners to the deal. Austrian undercover police officers were introduced to L.V. by Marc and offered the required transport and storage services. L.V. and the two criminal groups accepted. During the business negotiations, the South American group as well as the Serbian ‑ Montenegrin group requested a security in case of loss of the drugs due to the conduct of the Austrian authorities. The undercover officers offered a deposit of EUR 400.000 which was presented to the contact persons of the two groups. After the security deposit was presented, the cocaine was shipped in South America in two tranches. On 3   November   2004 the first container left the port of Callao, Peru, with a planned arrival date in Bremerhaven, Germany, of 4 or 5 December. On board were 270.4   kilograms of best quality cocaine, consisting of 232.5   kilograms of cocaine in pure form. However, the cocaine was seized and secured in the port of Charleston, South Carolina, in the course of a police intervention by the US security authorities. The empty container was sent on to Bremerhaven. On 23 November 2004 a second container with 140 kilograms of cocaine was shipped. The first container arrived in Graz, Austria, on 12 January 2005 and was unloaded by Austrian undercover police officers. As agreed by the two criminal organisations involved, they stored the shipped goods in which the drugs had been hidden, in a storage facility in Unterpremstätten before passing them on to the group headed by N.T. and other distributors for sale in Europe. On 28 November 2004 the applicant left Uruguay for Spain via Portugal, and finally arrived in Vienna on 5 December 2004. The objective of the trip was to have a representative of the South American group present at the handover of the original freight papers. When the loading should have formally been handed over to the buyers’ group, the police arrested the applicant and the others. 7.     There is no indication that at any point during the trial proceedings before the Regional Court the applicant filed a request that the indictment be declared unlawful and that, as a consequence, all evidence obtained in the course of thereof be excluded from the trial. 8.     The Regional Court attributed importance to the witness statements of the undercover officers who had explained – as set out in the reasoning of the judgment – credibly and in great detail the structure and organisation of the groups involved, the details of the deal, and the conversations held during the course of planning the crime. The court emphasised that the undercover officers’ responsibility had been to put in place the planned infrastructure (the storage, for example), not to simulate drug-purchasing. In view of the international dimension of the drug deal and the involvement of an obviously substantial South American drug trafficking group, the court found it not abnormal that trust-generating measures such as the payment of EUR 400,000 as a security deposit had to be demonstrated by the undercover officers. 9.     The applicant’s involvement was confirmed, inter alia , by the investigative results of a police officer in Montevideo who was able to confirm the contacts established early on between L.V. and the applicant in South America. 10.     When determining the sentence to be imposed on the applicant, the Regional Court stated as mitigating circumstances the lack of any criminal record of the applicant in Austria, the length of the proceedings, and the fact that the criminal acts had remained attempts only. However, the large quantities of illegal drugs involved were deemed to constitute an aggravating circumstance. The proceedings on the applicant’s plea of nullity and his appeal against sentence 11.     On 23 June 2008 the applicant, represented by counsel, lodged a plea of nullity to the Supreme Court ( Nichtigkeitsbeschwerde) . In this plea he did not complain about incitement. 12.     In the same submission the applicant lodged also an appeal against the sentence to the Graz Court of Appeal (Berufung ). In the appeal the applicant sought mitigation of the sentence and submitted, inter alia , that the first-instance court, in imposing the sentence, had disregarded the fact that the offences had been prompted by actions on the part of domestic and American police authorities. He further stated that the DEA had also approached the German police authorities with their plan to help realise a major drug deal, but the latter had declined the proposal as being unlawful. Only then had the DEA proposed the plan to the Austrian authorities. The applicant alleged that neither the South American group nor the presumed European buyers had had the intention of organising a drug shipment to Austria. That plan had been created ‒ in contravention of Austrian law ‒ by the Agent S.F. together with Austrian officials from the Federal Ministry of Interior Affairs ( Bundesministerium für Inneres ). Those acts on the part of the police authorities exceeded the bounds of simple provocation, especially taking into account that the offences of which the applicant was convicted would not have come to fruition had the Austrian authorities not deposited EUR 400,000 by way of a security deposit. 13.     On 21 January 2009 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicant’s plea of nullity. 14.     On 1 April 2009 the Graz Court of Appeal ( Oberlandesgericht Graz ) allowed the applicant’s appeal and decreased his sentence to twelve years’ imprisonment. It found firstly that the commercial character of the offences ( gewerbsmässige Begehungsweise ) had to be taken into consideration as an additional aggravating circumstance. As regards the significance attributed by the first-instance court to the length of the proceedings, the Court of Appeal stated that, while acknowledging the length of the proceedings as a mitigating circumstance, the Regional Court had not clearly quantified the reduction of the sentence related to that mitigating circumstance. Finally, concerning the provocation of the criminal offence that violated the fairness principle of Article 6 of the Convention, the Court of Appeal noted in respect of the co-convicted N.T. as follows: “The objection of unlawful incitement, in breach of the principle of a fair trial under the first sentence of Article 6 § 1 ECHR, is well founded, as there was incitement to commit an offence, attributable to the State. This is especially true since the prosecuting authorities failed to prove that the appellant, although disposed to commit an offence, had not been induced – in particular via the provision of the intermediate storage facility for the drugs by the undercover investigators and the support they provided for transporting the drugs to that storage facility – to commit and continue to commit the specific punishable acts of which he was accused. The unlawful incitement should also be remedied by means of an explicit, measurable reduction in sentence.” Applying this reasoning to the applicant’s appeal, the Court of Appeal further found that: “The consequent breach of the right to a fair trial also found in the case of the accused Batista Laborde is likewise remedied by the appellate court by means of a reduction in sentence. This was taken into account to some extent by the first-instance court – albeit not in quantitative terms – in respect of the excessive length of the proceedings. The sentence of thirteen years’ imprisonment, which was otherwise commensurate with the degree of guilt and the seriousness of the offence (regard being had to the corrected factors considered in determining sentence and the assessment thereof), is reduced by six months for each of the two breaches of the Convention, resulting in a sentence of twelve years’ imprisonment.” 15.     That judgment was served on the applicant’s counsel on 29   April   2009. B.     Relevant domestic law and pratice 1.     The provisions regulating undercover investigations 16.     Article 25 of the Code of Criminal Proceedings ( Strafprozessordnung 1975 ) in force until 1 January 2008 stated that authorities must not, on pain of imposition of a penalty, work towards the production of suspicious facts or the conviction of a suspect by inciting a person to commit, continue with or complete an offence, or by luring a suspect, through the intermediary of an undercover agent, to confess to an offence with the aim of using such confession in court proceedings. 17.     Police undercover operations were regulated in Article 149d to 149e of the Code of Criminal Proceedings and Section 54 of the Security Police Act ( Sicherheitspolizeigesetz ). 2.     Plea of nullity and appeal against the sentence 18.     Under the Code of Criminal Proceedings the two possible remedies against a judgment passed by a bench of judges at a Regional Court are a plea of nullity ( Nichtigkeitsbeschwerde ) and an appeal against sentence ( Berufung ). A plea of nullity has to be addressed to the Supreme Court while an appeal against sentence has to be addressed to the Court of Appeal. The remedies can be lodged either in the same written submission or separately. If the accused files a single written submission for both remedies, the Supreme Court will examine the case first. 19.     A plea of nullity before the Supreme Court can be based on the specific grounds set out in Article 281 § 1 of the Code of Criminal Proceedings. The list of grounds for invalidity ‒ which is exhaustive ‒ deals with procedural aspects such as the (alleged) bias of a judge or a lack of the requisite representation by a defence counsel during the trial, and also aspects of the merits such as misinterpretation of the law. 20.     According to Article 281 § 1.4 of the Code of Criminal Proceedings, a plea of nullity can be raised if during the main hearing the court in question has failed to deal with a request from an accused or if a [procedural] decision disregarding his request or conflicting with his declared objection has been taken by the Court and there has been a violation of either the law or fundamental procedural principles which seek to safeguard compliance with human rights ‒ especially Article 6 of the European Convention on Human Rights ‒ or other fundamental rights of the prosecution or the defense. 21.     Under Article 281 § 1.9b of the Code of Criminal Proceedings, a plea of nullity can be raised if there are circumstances in which the act concerned is no longer a punishable offence or can no longer be prosecuted. 22.     According to Article 285 § 1 of the Code of Criminal Proceedings the plea of nullity has to name separately and specifically the grounds for invalidity about which it is complaining, otherwise the Supreme Court will not take these grounds into consideration. 23.     If the Supreme Court finds one or more grounds for invalidity well founded, it quashes the judgment and orders a re-trial. 24.     If the Supreme Court has dismissed the plea of nullity and the applicant has also challenged the sentence, the Supreme Court will transfer the case file to the Court of Appeal. In this case, or if the accused has merely filed an appeal against the sentence, the Court of Appeal will only examine the sentence imposed and not consider alleged errors in proceedings, the law or the establishment of facts by the Regional Court. It may examine only the parameters which relate to the Regional Court’s decision on the sentence and therefore re-examines the weighing up of mitigating and aggravating circumstances undertaken by the first-instance court. If the Court of Appeal detects an imbalance in the weighing up of the first-instance court, it readjusts this balance by reviewing the sentence. COMPLAINT The applicant complained under Article 6 about a violation of his right to fair trial because of an unlawful incitement by undercover police officers. THE LAW 25.     The applicant complained that his right to a fair trial, as provided in Article 6 of the Convention, had been violated. Article 6, insofar as relevant reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 26.     The Government contested this argument and requested that the Court declare the application inadmissible as the applicant had not exhausted the domestic remedies for several reasons. 27.     The Government stated that an effective legal remedy which would have been suitable and sufficient had been available to the applicant to redress the alleged breach of his rights under Article 6 of the Convention. Article 363a of the Code of Criminal Proceedings provides for a retrial in criminal proceedings if the European Court of Human Rights has found a violation of the Convention. The Supreme Court extended the possibility of seeking such a remedy by analogy, stating that a judgment by the European Court of Human Rights was not a prerequisite for a retrial in criminal proceedings (Supreme Court, judgment of 1 August 2007, no.   13Os135/06m). It thus would have been possible to challenge a violation of the right under the Convention within criminal proceedings at the domestic level by filing a request for a retrial on the basis of Article   363a of the Code of Criminal Proceedings directly with the Supreme Court. This ruling would have been immediately discussed and disseminated not only amongst the circle of legal experts but also in the daily newspapers. There would also have been others who had used this remedy, as statistical data would show. In the present case, however, the applicant had been represented by counsel and had not lodged a request under Article 363a of the Code of Criminal Proceedings. Therefore, he had failed to exhaust domestic remedies. 28.     The Government also asked the Court to declare the complaint inadmissible because of non-exhaustion of domestic remedies as the applicant had not claimed in domestic court proceedings that the incitement as such would interfere with his rights under Article 6. In the first instance trial proceedings he had not raised this question at all. Then he could and should have complained about this alleged violation in his plea of nullity according to Article 281 § 1.4 of the Code of Criminal Proceedings (see   paragraph 20 above), instead he complained only about insufficient assessment of the evidence, inadequate and incorrect legal reasoning in the judgment, and deficiencies in the findings of fact. In his appeal against the sentence before the Court of Appeal, the applicant raised the question for the first time, but only argued that the sentence should be reduced because of the incitement. He had therefore not exhausted all domestic remedies, as required by Article 35 §1 of the Convention. 29.     The applicant contested these arguments. 30.     As regards the Government’s first objection, the Court observes that in the case of ATV Privatfernseh-GmbH v. Austria (dec., no. 58842/09, 6   October   2015, § 32) the Court examined in detail whether Article 363a of the Code of Criminal Proceedings was a remedy readily available and sufficient to afford redress in respect of an alleged breach of rights under Article 10 of the Convention in proceedings for compensation under Section   7 of the Media Act. Because of a lack of access to the Supreme Court in proceedings under this provision, the Supreme Court had declared that the previous lodging of an application with the European Court of Human Rights was not a precondition for filing a request under Article 363a of the Code of Criminal Proceedings. As the Supreme Court had examined the requests in detail in regard to alleged violations of the European Convention on Human Rights, the Court concluded that a request under Article 363a of the Code of Criminal Proceedings was accessible and offered suitable redress in respect of an alleged violation of the Convention in proceedings under the Media Act. Therefore, not filing an application before the Supreme Court in cases under the Media Act would result in the non ‑ exhaustion of domestic remedies as required by Article 35. 31.     The Court notes that in its decision of 1 August 2007 (quoted in ATV   Privatfernseh-GmbH v. Austria , cited above, §19) the Supreme Court stated that an application under Article 363a of the Code of Criminal Proceedings without a previous decision of the European Court of Human Rights will only be admissible in cases where the Supreme Court had not been given previously the opportunity to examine the question of a possible violation of human rights. 32.     In the present case, the applicant lodged a plea of nullity. The Court observes that, from the information available, a new application under Article 363a of the Code of Criminal Proceedings was not admissible after the Supreme Court’s decision on the applicant’s plea on 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. 33.     As regards the Government’s second objection, the Court reiterates that the objective behind the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation that a Convention right has been violated and, where appropriate, to afford redress before that allegation is submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III, and Kudła   v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI). 34.     Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged (see Mifsud v. France (dec.) [GC], no.   57220/00, § 15, ECHR 2002 ‑ VIII with further references). Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been discharged, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, amongst others, Šoć v. Croatia , no. 47863/99, § 91, 9 May 2003). 35.     In the present case, the applicant did not complain during the first ‑ instance trial proceedings that the conduct of the undercover officers constituted unlawful incitement in the light of Article 6 of the Convention, nor has he presented documents which would lead to this assumption. Nor did he complain about a violation of Article 6 in the plea of nullity which he submitted together with his appeal against the sentence. Likewise, he did not challenge the Supreme Court’s case-law in regard to unlawful incitement, merely asking the Court of Appeal to apply a different weighing up of this element when determining the sentence. 36.     As the Court has stated previously in its case-law, Article 6 § 1 of the Convention does not permit the use of evidence obtained as a result of police incitement. For the trial to be fair within that provision, all evidence obtained as a result of police incitement must be excluded or a procedure with similar consequences must apply (see Furcht v. Germany , no.   54648/09, §   68, 23 October 2014). 37.     The Court observes that during the trial the applicant ‒ who was represented by counsel during trial and in the subsequent proceedings ‒ could have asked the Regional Court to refrain from using evidence obtained by means of the undercover police investigations. Furthermore, Article 281 § 1.4 of the Code of Criminal Proceedings specifically provides as a ground for nullity the taking by the first-instance court during the main hearing of a procedural decision ‒ such as the inclusion of unlawfully obtained evidence ‒ in spite of the applicant’s declared objection thereto, or the violation of fundamental procedural principles which seek to ensure compliance with human rights, especially Article 6 of the European Convention on Human Rights or other fundamental rights of the prosecution or defence. The Court agrees with the Government that both these avenues could reasonably have resulted in a further examination of the facts of the case in respect of the lawfulness of the incitement and its consequences for the trial. Therefore, the Court concludes that the applicant could have raised the question of the incitement during the proceedings and he therefore had at his disposal a remedy which was accessible, was capable of providing redress in respect of his complaints and offered reasonable prospects of success. 38.     Moreover, the applicant did not argue that the raising of these objections during trial and in the plea of nullity would have been inadequate and ineffective in the particular circumstances of the case for any reason or that there existed any special circumstances exempting him from the requirement to raise them. 39.     In summary, the applicant had at hand a remedy for complaining about the alleged violation which was capable of providing redress in respect of the his complaint and offered reasonable prospect of success. 40.     It follows that the application is inadmissible and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 25 February 2016. Françoise Elens-Passos   András Sajó   Registrar   President