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THIRD
SECTION
CASE OF CONSTANTIN AND STOIAN v. ROMANIA
(Applications
nos. 23782/06 and 46629/06)
JUDGMENT
STRASBOURG
29
September 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Constantin and
Stoian v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 8 September 2009
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 23782/06 and 46629/06)
against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Romanian nationals, Mr
Marius-Georgian Constantin and Mr Florin Stoian (“the
applicants”), on 1 June 2006 and 9 November 2006 respectively.
- They
were represented by Mr Niculae Constantin (the first applicant) and
Mr Nicolae Trăistaru (the second applicant), lawyers
practising in Bucharest. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
- On
12 February 2008 the President of the Third Section decided
to
communicate the complaints concerning the allegations of lack of a
fair trial (Article 6 §§ 1, 2 and 3 of the Convention)
and the use of agents provocateurs to the Government. It was
also decided to examine the merits of the applications at the same
time as their admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1979 and 1971 respectively. The first
applicant lives in Bucharest, and the second in Afumaţi, Ilfov
county.
- On
11 November 2003 the prosecutor started criminal proceedings against
“George” and “Florin”, later identified as
the applicants, based on information that they were trafficking in
drugs. No other details were given in this decision of the
prosecutor.
A. The events of 18 November 2003
- On
18 November 2003 the police division responsible for the fight
against organised crime and drug trafficking (“the police”)
sought authorisation from the prosecutor's office to use an
undercover agent and to obtain two grammes of heroin in order to
gather evidence of the applicants' alleged involvement in drug
trafficking. It relied on Law no. 143/2000 on the fight against
drug trafficking and illegal drug use (“Law no. 143”).
The same day, the organised crime and drug trafficking section of the
prosecutor's office at the Bucharest Court of Appeal (“the
prosecutor's office”) authorised the operation for ten days and
handed over the two grammes of heroin to the undercover agent
(referred to in the domestic proceedings as “Alex 1”).
- The
police set up the surveillance operation in the car park of
McDonald's Dristor (Bucharest), where the trafficking was thought to
happen. Meanwhile G.M., a police collaborator (referred to in the
domestic proceedings as “Alex 2”), set up a meeting with
the first applicant, whom he had known previously.
- At
13.45 Alex 1 arrived by car in the parking area together with Alex 2.
The first applicant and another man were sitting in another car.
Alex 2 got out and approached the applicant; he was to tell him
that Alex 1, whom the applicant did not know, wanted to contact
a person who could sell him two grammes of heroin. After a short
talk, Alex 2 returned accompanied by the first applicant; the latter
then left by car with Alex 1. The police followed the car until it
stopped in front of a building on Zizin Street. The applicant made a
phone call from Alex 1's mobile phone. He left the car and entered
the building, where he remained for 10-15 minutes. He then returned
with the second applicant to Alex 1's car. The first applicant took
the right front seat, while the second applicant remained standing
near the right front door of the car. Alex 1 handed money to the
first applicant; the latter passed it to the second applicant who
took it and walked away.
- At
that moment the police got out of their cars and shouted: “Police,
stop!”. The second applicant started running, abandoning his
jacket and the money. He managed to escape into one of the
neighbouring buildings.
- The
first applicant was identified and searched. Sixteen tablets of
methadone were found on him. He admitted that the tablets belonged to
him and declared that he was a rehabilitated drug user and was
authorised to take methadone. A small package containing 1.5 g of
heroin was visible in the car near the gear lever. The police seized
it.
- The
same day a search was conducted in the flat from where the second
applicant had come, and where he lived with S.F., his partner. No
drugs were found.
- The
first applicant was taken into custody for 24 hours, but released on
19 November 2003. While in custody, he was taken to hospital under
suspicion that he had swallowed a package of heroin. The treatment
did not confirm the suspicions.
- The
second applicant was apprehended on 18 May 2004 after being noticed
on the street by Alex 1. He was taken into police custody. On 20 May
2004 the Bucharest County Court ordered his pre-trial detention for
thirty days. His detention was subsequently extended by the court
every thirty days until the end of the proceedings before the
first-instance court.
B. Applicants' statements during the criminal
investigations
- On
18 November 2003 the first applicant made a statement to the police,
in the presence of a lawyer. He admitted to having facilitated the
drugs sale between Alex 1 and the second applicant. He stated that he
had taken the money from Alex 1 and handed it to the second
applicant, who had then put a small bag of heroin near the gear
lever. He also stated that he had obtained the methadone tablets from
a nurse in Badgasar Hospital in exchange for a bag of coffee.
-
The prosecution file contains a second statement in the same terms,
which is not dated and is signed only by the first applicant. He
claimed it had been taken the same day, on his arrest.
- The
next day, however, the first applicant, in the presence of his
lawyer, changed his position and stated before the Bucharest County
Court that he was not a drug dealer and had not taken drugs for two
years. He also stated that G.M. had requested him to make the second
applicant come out of his house, where the police would be present.
He had only agreed to help because he understood that it was a covert
police operation. He maintained that an exchange of money for a small
bag had occurred between Alex 1 and the second applicant. He also
confirmed that the sixteen tablets of methadone were for his own use
and that he had obtained them without prescription.
- When
interviewed by the prosecutor on 5 and 7 July 2004 the first
applicant took the same position as before the County Court. He
explained that he had given the statement of 18 November 2003
thinking that he would be participating in the criminal proceedings
only as a witness and not as an accused.
- On
19 May 2004 the second applicant told the prosecutor that he had not
handed anything to the first applicant, that he had not known what
the small package found in the car contained and that he had only
agreed to accompany the first applicant to the car because the latter
had told the second applicant that he had money for the second
applicant's partner, S.F. He also declared that at that moment he had
not known that S.F. was a drug dealer. On 1 March 2004 S.F. was also
arrested for drug trafficking in the context of a separate
investigation.
- The
second applicant maintained his above statements on 20 May 2004
before the Bucharest County Court and on 7 July 2004 in an interview
with the prosecutor.
- On
12 July 2004 the prosecutor's office indicted the applicants for
possession and sale of dangerous drugs in violation of Law no. 143.
It established, based on the evidence gathered, that the second
applicant had given the small bag of heroin to the first applicant,
who had handed it to Alex 1, and that in exchange Alex 1 had given
him the money, which he had then handed to the second applicant.
- The
prosecutor noted that the first applicant had been found guilty of
possession and consumption of drugs in 2001 and that the second
applicant had no known criminal record.
C. Proceedings before the Bucharest County Court
- The
applicants gave statements on 7 September 2004. The first applicant
reiterated that he had only agreed to contact the second applicant
because he had been informed of the covert police operation. The
second applicant maintained his position and denied trafficking in
drugs.
- The
undercover agent and the collaborator supported the prosecutor's
version of the facts and maintained that the first applicant had not
been aware of the police operation.
- Some
of the witnesses who had been unfavourable to the applicants during
the investigations changed their statements before the court and
claimed that they had signed without reading statements drafted
entirely by the police.
- At
the hearing on 20 May 2005, after several reminders left unanswered
by the prosecutor's office, the applicants' lawyers no longer
insisted on obtaining an answer concerning the fate of the bag of
heroin released to Alex 1 for the covert operation.
- On
25 May 2005 the Bucharest County Court gave judgment, acquitting the
applicants. It considered that the elements in the file indicated
that on 18 November 2003 the police had sought to provoke a drug
sale and had failed. Consequently, the heroin received by Alex 1 from
the prosecutor's office had been placed in the car to prove the
alleged commission of the criminal offence. The court also noted that
the criminal proceedings had been started illegally on 11 November
as at that date there had been no relevant information on the
applicants' alleged criminal behaviour, and the facts under
investigation had only taken place on 18 November. It also noted
that the exchange of money for drugs was not proved, and that the
witnesses could not support the prosecution's version. The court
ordered the second applicant's immediate release.
D. Appeal proceedings
- On
3 October 2005 the appeal proceedings started before the Bucharest
Court of Appeal, on an application lodged by the prosecutor's office.
The Court of Appeal heard evidence from the prosecutor and the
applicants' lawyers. The applicants used their right to address the
court before the end of the hearing (ultimul cuvânt al
inculpatului). No other evidence was requested by the parties or
heard by the court.
- On
10 October 2005 the Court of Appeal convicted and sentenced the first
applicant to seven year's imprisonment and the second applicant to
six years' imprisonment. It considered that the detailed description
of the events made by the undercover agent and the collaborator
should have been given more weight as they corroborated the police
reports on the arrest in flagrante delicto and thus reflected
the truth. The court decided that the first applicant had not been
honest in his statements and that he had only claimed to have been
aware of the covert police action because he knew from his own
experience that collaborators were protected by law. It also
concluded that the second applicant's aim had been to protract the
investigations. The court took the fact that the witnesses changed
their position as proof of their dishonesty.
The
Court of Appeal set aside the County Court's finding of incitement as
follows:
“The court considers, unlike the first-instance
court, that Article 68 §§ 1 and 2 of the Code of Criminal
Procedure is not applicable so long as the evidence does not show
that Constantin Marius Georgian was threatened or coerced to commit
the facts. Likewise it is not proved that he was persuaded by the
police to commit a crime, ... he agreed to facilitate the drug sale,
but no longer admitted to it before the court.”
It
considered the arguments based on the origin of the heroin found as
follows:
“... Constantin Marius Georgian himself stated
when apprehended by the police and in subsequent statements that the
drugs found in the car had been handed over by Stoian Florin, in
exchange for 6,000,000 lei.”
- The
first applicant was also convicted of illegal possession of sixteen
tablets of methadone.
- The
court deducted the second applicant's preventive detention from
“19 May 2004 to 25 May 2004”. It also confiscated,
under Article 17 § 1 of Law no. 143/2000, the eight tablets of
methadone and 1.48 g of heroin left after the laboratory tests from
the first and the second applicant respectively.
- On
11 May 2006 the High Court of Cassation and Justice upheld the
conviction following an appeal on points of law lodged by the
applicants.
It
also corrected the material error in the appeal decision concerning
the second applicant's preventive detention, and in an interlocutory
judgment of 14 July 2006 noted that he had been detained from 19 May
2004 to 25 May 2005.
E. Other proceedings
- On
7 July 2004 and on 2 June and 16 August 2006 the applicants lodged
criminal complaints against G.C., the prosecutors in charge of their
investigation, the undercover agent and the witnesses alleging that
they had given false testimony to the investigative authorities. In
addition, the first applicant, in the appeal of 7 July 2004,
complained that several items adduced by him as evidence had
disappeared from the criminal file. On 11 October 2004 and
23 May and 13 June 2007 the prosecutor's office at the High
Court of Cassation and Justice decided not to prosecute G.C. and
Alex 1. On 25 February 2008 a similar decision was taken in
respect of the witnesses by the prosecutor's office at the Bucharest
District Court.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
- Article
68 of the Code of Criminal Procedure reads as follows:
Article 68
“1. It is forbidden to use violence,
threats or other means of coercion, as well as inducements, in order
to obtain evidence.
2. It is also forbidden to incite a person to
commit or continue committing a criminal offence for the purpose of
obtaining evidence.”
- The
relevant provisions of Law no. 143 read as follows:
Article 1
“In the present Act the terms and expressions
below shall have the following meaning:
...
(k) Undercover agents: police officers
specifically designated to carry out, with the prosecutor's
authorisation, investigations with a view to collecting data
regarding the existence of the offence and the identification of the
offender and precursory acts, under another identity than their real
one. Such authorisation shall be conferred for a limited time only.”
Article 21
“1. The prosecutor may authorise the
use of undercover agents to determine the facts, identify the
offender and obtain evidence where there is good reason to believe
that a criminal offence as defined in the present Act has been
perpetrated or is about to be committed.”
Article 22
“1. Police officers from the special
units who act as undercover agents, as well as persons acting with
them, shall be allowed to procure drugs, base and compound chemical
substances with the prosecutor's prior authorisation, with a view to
discovering criminal activities and identifying the persons involved
in such activities.
2. The results of the actions of the police
officers and persons acting with them referred to in paragraph 1 may
constitute evidence.”
- The
Council of Europe's texts on the use of special investigative
techniques are detailed in Ramanauskas v. Lithuania [GC],
no. 74420/01, §§ 35-37, ECHR 2008 ....
THE LAW
I. JOINDER OF THE APPLICATIONS
- In
view of the similarity of the cases in terms of both fact and law,
the Court finds it appropriate to join and examine them together.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that they had not received a fair trial in the
criminal proceedings against them, alleging a violation of Article 6
§§ 1, 2 and 3 (a), (b) and (c) of the Convention, which
reads as follows:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals,
public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would
prejudice the interests of justice.
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;”
- In
particular, the applicants complained that they had been incited to
commit a criminal offence by the undercover police agent and his
collaborator acting as agents provocateurs.
- They
considered that the prosecutor had not observed the procedural
requirements in issuing the indictment; that the prosecution had been
based on evidence gathered by pressuring witnesses into giving false
testimony; that the first applicant had not been assisted by a lawyer
when he had given his first statement and when the prosecutor had
informed him of the accusations on 18 November 2003 and had not been
properly summoned during the investigations; and that the second
applicant had not been informed of the prosecution acts between
18 November 2003 and 19 May 2004.
- They
also complained about the way the Court of Appeal had changed the
interpretation of the facts without hearing evidence and without
clarifying where the money given by Alex 1 had come from or what had
happened to the money and the two grammes of heroin released by the
prosecutor to the undercover police officer. The second applicant
also pointed out that the Court of Appeal had not ordered the
examination of the bag of heroin for fingerprints in order to
establish whether he had touched that bag.
- In
addition, the first applicant complained that he had been authorised
to have the methadone as a rehabilitated drug user, and had thus been
convicted of a crime he had not committed.
- Lastly,
the applicants complained that the way the Court of Appeal had
interpreted the evidence had infringed their right to the presumption
of innocence.
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The Government
- The
Government averred that a system allowing for covert police
operations was common to other European countries and was recommended
by the Council of Europe and the European Union in certain instances.
- Regarding
the facts of the present case, they denied that there had been police
incitement, arguing that the information prior to the covert
operation had revealed that the first applicant had been predisposed
to commit a criminal offence (they referred to Sequeira
v. Portugal (dec.), no. 73557/01, ECHR 2003 VI).
They pointed out that the second applicant had had no direct contact
with the undercover agent.
- The
Government admitted that the first applicant seemed to have been
interviewed once by the prosecutor in the absence of his lawyer.
However, they considered that the applicant's defence rights had not
been affected by that episode, in so far as he had not made any
incriminating statements. Moreover, that remained an isolated
episode, the applicant having been assisted by his lawyer throughout
the other more complex interviews.
They
also pointed out that the second applicant had not been informed
about the investigations because he had absconded from 18 November
2003 until May 2004.
- The
Government rejected the allegations of unfairness in the proceedings
before the Court of Appeal. In their view, the court had given a
detailed interpretation of the evidence and explained its conclusions
thoroughly. The decision had, in addition, been upheld by the High
Court of Cassation and Justice.
Moreover,
unlike in the case of Teixeira de Castro v. Portugal (9 June
1998, Reports of Judgments and Decisions 1998 IV), the
courts in the case at hand had not based their decision solely on the
undercover agents' testimonies. The applicants had been heard by the
first instance court (the Government referred, a contrario,
to Ilişescu and Chiforec v. Romania, no. 77364/01,
1 December 2005) and had had the possibility of
cross-examining
the undercover agent (they referred, a contrario, to Dănilă
v. Romania, no. 53897/00, 8 March 2007).
In
their view, it was enough for the first-instance court to examine the
evidence directly.
- The
Government pointed out that the Court of Appeal had cleared up the
doubts concerning the origin of the drug, as it had established that
the package had been handed over by the second applicant in exchange
for the money from Alex 1. Moreover, they averred that the
applicants' lawyers had not requested further evidence before the
Court of Appeal.
- The
Government also submitted that both courts and prosecutors had
examined the applicants' allegations of police incitement and
dismissed them in thoroughly reasoned decisions.
- Lastly,
the Government argued that the first applicant had not produced a
valid prescription for the methadone. In any case the appeal courts
had answered his plea.
(b) The applicants
- The
first applicant reiterated that he had been informed from the very
beginning of the covert operation and had been asked to help “catch”
the second applicant in flagrante delicto. In his view Alex 1
had acted as an agent provocateur and used the two grammes of
heroin to frame the applicants. He pointed out that the courts had
been unable to establish what had happened to that heroin. Lastly, he
argued that he had submitted a valid authorisation to possess
methadone at the material time.
- The
second applicant did not present his views within the time limits
set by the Court.
2. The Court's assessment
- The
Court observes that in contesting the fairness of the proceedings,
the applicants put forward two arguments. Firstly, they argued that
they had only committed the offence because of the intervention of
agents provocateurs, the first applicant claiming that he had
been aware of the covert police operation and the second applicant
that he had only agreed to accompany the first applicant to the car
in order to receive his partner's money. Secondly, they argued that
in convicting them, the Court of Appeal had not carried out a
thorough examination of the evidence.
- The
Court reiterates its recent case-law on Article 6 in which it
elaborated on the concept of entrapment as distinct from the use of
legitimate undercover techniques and reaffirmed the domestic courts'
obligation to carry out a careful examination of the material in the
file where an accused invokes police incitement. In this context, the
Court has also established that its function under Article 6 § 1
is not to determine whether certain items of evidence were obtained
unlawfully, but rather to examine whether such “unlawfulness”
resulted in the infringement of another right protected by the
Convention; it has thus to review the quality of the domestic courts'
assessment of the alleged entrapment and to ensure that they
adequately secured the accused's rights of defence, in particular the
right to adversarial proceedings and to equality of arms (see
Ramanauskas, cited above, §§ 49-61; Malininas
v. Lithuania, no. 10071/04, §§ 34-35, 1 July
2008; and Bykov v. Russia [GC], no. 4378/02,
§§ 88-93, 10 March
2009).
- To
ascertain whether or not the undercover police confined themselves to
“investigating criminal activity in an essentially passive
manner” in the present case (see Ramanauskas, cited
above, § 55), the Court has regard to the following
considerations. Nothing in the applicants' past suggested a
predisposition to trafficking in drugs. The fact alone that one of
them was a convicted drug user (see paragraph 21 above) cannot change
the Court's conclusion. The Court notes that the prosecutor did not
give details, or refer to any objective evidence, concerning the
applicants' alleged unlawful behaviour in his decision to start
criminal proceedings. Moreover, no heroin was found either in the
first applicant's possession or in the second applicant's home (see
paragraphs 10-12 above).
- The
Court also notes that the parties gave different interpretations of
the events that had occurred on 18 November 2003. According to the
Government, the first applicant had agreed to broker the deal between
the undercover agent, whose identity he did not know, and the second
applicant, and the drugs found in the agent's car had resulted from
that deal. However, the first applicant, claiming police incitement,
stated that he had been informed of the covert operation, while the
second applicant claimed that he had been tricked into accepting the
money; both applicants claimed that the two grammes of heroin found
by the police were the same as those released by the prosecutor's
office for the covert operation.
- In
the light of this controversy, and notwithstanding its subsidiary
role in assessing the evidence, the Court shall examine whether the
applicants were able to raise effectively the issue of incitement
(see Ramanauskas, §§ 60-61, and Malininas,
§ 34, both cited above).
- The
first-instance court concluded that the evidence taken from the
applicants, the undercover agent and witnesses confirmed that there
had been police incitement, and therefore acquitted the applicants on
that ground.
- However,
based on the same evidence, the appeal court reversed the decision
and convicted the applicants of trafficking in drugs. In doing so,
the Court of Appeal 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 first-instance court had been
false.
- The
Court reiterates that when a court of appeal is called upon to
examine the case as to the facts and the law and to make a full
assessment of the question of the applicant's guilt or innocence, as
it was in the present case, it cannot, as a matter of fair trial,
properly determine the issues without a direct assessment of the
evidence given in person by the applicant where he or she claims not
to have committed the act alleged to constitute the criminal offence
(see Dănilă v. Romania, no. 53897/00, § 35, 8
March 2007). The Court of Appeal failed, in the present case, to take
any evidence, let alone interview directly the applicants on the
merits of the accusations; the fact that the applicants did not
specifically request further evidence to be taken by the Court of
Appeal, as the Government pointed out, does not preclude that court
from taking positive measures to that effect (see Dănilă,
cited above, § 41). Likewise, the applicants' last address to
the court cannot be equated with their right to be heard by the court
during the trial (see Constantinescu v. Romania, no. 28871/95,
§ 58, ECHR 2000 VIII).
- Moreover,
notwithstanding the fact that it cannot hold in the abstract that
evidence given by a witness in open court and on oath should always
be relied on in preference to other statements made by the same
witness in the course of criminal proceedings, not even when the two
are in conflict (see Doorson v. the Netherlands, 26 March
1996, § 78, Reports 1996 II), the Court is not
convinced by the summary reasoning given by the Court of Appeal to
justify the precedence given to the statements obtained by the
prosecutor. It notes, in particular, that the doubts harboured by the
Court of Appeal concerning the lack of honesty of the witnesses were
not supported by the findings of the investigators in the matter. The
fact that the applicants were heard by the first instance court
and had the possibility of cross-examining witnesses at that stage of
the proceedings does not alter the Court's conviction on this point.
- Lastly,
unlike the Government, the Court is not convinced by the answer the
authorities, in particular the courts, gave to the allegations of
police incitement (see Ramanauskas, cited above, § 61).
Whether or not the first applicant knew of the police action and
whether or not the second applicant was tricked into accepting the
money, the facts of the case indicate that if it had not been for the
agent's express request to buy drugs, none of the events of 18
November would have occurred.
- The
Court considers that the Court of Appeal failed to properly examine
the first applicant's change of position, considering without further
explanation that he had refused, before the courts, to admit to his
involvement in the drug trafficking.
- In
conclusion, while being mindful of the importance and the
difficulties of the task of the investigating agents, the Court
considers, having regard to the foregoing, that the actions of the
undercover police officer and his collaborator had the effect of
inciting the applicants to commit the offence of which they were
convicted, going beyond the mere passive investigation of existing
criminal activity, and that the domestic courts did not investigate
sufficiently the allegations of incitement. For these reasons the
applicants' trial was deprived of the fairness required by Article 6
of the Convention.
There
has accordingly been a violation of Article 6 § 1 of the
Convention on this account.
- Furthermore,
the Court considers that the conclusion above makes examination of
the remainder of the complaint redundant.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the remainder of the complaints. However, in the
light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. In particular,
the second applicant complained under Article 6 § 1 of the
Convention that because of the domestic courts' erroneous recording
of his pre-trial detention, he would have to serve one additional
year of detention. This error was, in fact, corrected by the High
Court of Cassation and Justice on 14 July 2006 (see paragraph 31
above). Lastly, invoking in substance Article 1 of Protocol No. 1 to
the Convention, the second applicant complained that he could not
comply with the confiscation order concerning the 1.48 g of heroin,
since the heroin found on 18 November had already been surrendered to
the investigators and he did not possess any other drugs. The Court
notes, however, that the confiscation order referred to the same
drugs that were seized by the police during the events on 18 November
(see paragraph 30 above), and that no other measures were taken
against the applicants that would affect their property rights for
the purposes of Article 1.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant asked the Court to establish a reasonable amount in
compensation for pecuniary and non-pecuniary damage.
The
second applicant claimed, in his initial application to the Court,
252,000 euros (EUR) in respect of pecuniary damage and EUR 300,000
for non-pecuniary damage; he did not answer the Court's request, on
17 June 2008, to formulate his claims according to Rule 60 of the
Rules of Court. After the time-limits set for submission expired and
the applicant was warned that his application might be struck out, he
informed the Court that he maintained his previous claims.
- The
Government argued that the first applicant's claim for pecuniary
damages should be dismissed as he had failed to adduce any evidence
as to the damage actually incurred.
In
their view the second applicant's claims should be dismissed as he
had failed to present them in line with Article 60 of the Rules of
Court. They referred to Niţescu v. Romania (no. 26763/03,
§ 48, 21 April 2009). In addition, they argued that the claims
for the alleged pecuniary damage were excessive and unjustified and
that there was no causal link to any acts of the authorities.
They
also considered that the finding of a violation constituted in itself
sufficient just satisfaction for the non-pecuniary damage alleged by
the applicants.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged by the first applicant; it therefore
rejects this claim. On the other hand, it awards the first applicant
EUR 10,000 in respect of non-pecuniary damage.
- Lastly,
the Court notes that the second applicant, who was represented by
counsel, did not comply with the conditions for submitting his
claims, nor did he present a reasonable justification for his failure
to comply with the time-limits. It therefore rejects his claims
entirely.
B. Costs and expenses
- The
applicants made no claim under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the complaint concerning Article 6
(fairness of the criminal proceedings and presumption of innocence)
admissible and the remainder of the applications inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on the ground of police incitement and
failure of the domestic authorities to investigate the matter;
- Holds that there is no need to examine the
remainder of the complaint under Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 10,000
(ten thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage, to be converted
into the respondent State's national currency, at the rate applicable
at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Stanley Naismith Josep Casadevall
Deputy
Registrar President
