CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 29 septembre 2009

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s9E924E36 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#339966 } .sA36B60A1 { font-family:Arial; font-style:italic } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sBB9EE52A { font-family:Arial } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt }   701 29.09.2009   Press release issued by the Registrar   Chamber judgment [1]   CONSTANTIN AND STOIAN V. ROMANIA (application nos. 23782/06 and 46629/06 )   ENTRAPMENT BY THE POLICE   Violation Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights   Under Article 41 (just satisfaction) of the Convention, the Court awarded the first applicant 10,000   euros   (EUR) in respect of non-pecuniary damage. It made no award to the second applicant, who did not comply with the conditions for submitting his claims and had no reasonable justification for that. (The judgment is available only in English.)   Principal facts   The applicants are two Romanian nationals: Marius-Georgian Constantin, born in 1979 and living in Bucharest, and Florin Stoian, born in 1971 and living in Afumaţi (Romania). On 11 November 2003, the prosecutor started criminal proceedings against them, based on the information that they were trafficking in drugs. On 18 November 2003, the prosecutor’s office authorised the police to use an undercover agent and to obtain 2 g of heroin in order to gather evidence of their alleged involvement in drug trafficking. On the same day, a police collaborator organised a meeting between the undercover agent – who pretended to be willing to buy 2 g of heroin – Mr Constantin and Mr Stoian. The undercover agent gave money to the applicants and Mr. Stoian walked away with it. The police (who observed the scene) then intervened and arrested Mr Constantin; Mr Stoian managed to escape, but was arrested a few months later. The police found a small package containing 1.5 g of heroin in the undercover agent’s car, in which Mr Constantin and the agent had been sitting. The parties gave different interpretations of these events. According to the Government, Mr   Constantin had agreed to arrange the deal between the undercover agent, whose identity he did not know, and Mr Stoian, and the drugs found in the agent’s car had resulted from that deal. On the opposite, Mr Constantin, claiming police incitement, stated that he had been informed of the covert operation, while Mr Stoian claimed that he had been tricked into accepting the money; both applicants claimed that the 2 g of heroin found by the police were the same as those released by the prosecutor’s office for the covert operation.   On 25 May 2005, having heard the applicants, the police collaborator and agent and witnesses, the County Court acquitted the applicants, considering that the elements in the file indicated that the police had sought to provoke a drug sale and had failed. Consequently, the heroin received by the undercover agent from the prosecutor had been placed in the car to prove the alleged commission of the criminal offence. On 10 October 2005, based on the same evidence, the Bucharest Court of Appeal (on an appeal lodged by the public prosecutor’s office) reversed the decision and convicted the applicants of trafficking in drugs. In doing so, it did not interview the persons who had appeared before the prosecutor and the County Court. It decided to give precedence to the statements obtained by the prosecutor and considered that those given before the County Court had been false.   Complaints, procedure and composition of the Court   Relying on Article   6   §§   1, 2 and   3 (right to a fair trial), the applicants complained about the unfairness of the criminal proceedings against them, alleging in particular that they were incited to commit a criminal offence by the undercover police officer and his collaborator. The applications were lodged with the European Court of Human Rights on 1 June 2006 and 9 November 2006 respectively.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Egbert Myjer (the Netherlands), Ineta Ziemele (Latvia), Luis López Guerra (Spain), Ann Power (Ireland), judges ,   and also Stanley Naismith , Deputy Section Registrar .   Decision of the Court   The Court first reiterated that entrapment was distinct from the use of legitimate undercover techniques. It also reaffirmed the domestic courts’ obligation to carry out a careful examination of the material in the file where an accused invoked police incitement (the Court’s role being only to ensure that the domestic courts had adequately secured the rights of the defence).   The Court, mindful of the importance and difficulties of the investigating agents’ task, held that in this case the actions of the undercover police agent and his collaborator, beyond mere passive criminal investigation, had incited the applicants to commit the offence of which they were convicted. Notwithstanding both its subsidiary role in assessing the evidence and the controversy on the events, it considered that the facts indicated that if it had not been for the police officer’s express request to buy drugs, none of the events in question would have occurred.   Furthermore, the domestic courts had not sufficiently investigated the allegations of incitement. In particular, the Court of Appeal had reversed the County Court decision without having taken any evidence, let alone having interviewed directly the applicants on the merits of the accusations. The Court also noted, among other things, that the Court of Appeal’s doubts concerning the lack of honesty of the witnesses had not been supported by the findings of the investigation.   The Court therefore concluded that the applicants’ trial had been unfair, in violation of Article   6.     ***   Press contacts Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) or Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.