SANDU v. THE REPUBLIC OF MOLDOVA - 16463/08 - Chamber Judgment [2014] ECHR 120 (11 February 2014)

In the case of Sandu v. the Republic of Moldova,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Josep Casadevall, President,
          Alvina Gyulumyan,
          Ján Šikuta,
          Luis López Guerra,
          Nona Tsotsoria,
          Johannes Silvis,
          Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 21 January 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 16463/08) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Victor Sandu (“the applicant”), on 19 March 2008.

2. The applicant was represented by Mr M. Avram, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicant alleged, in particular, that he had been the victim of entrapment, as a result of which he had committed a criminal offence.

4. On 13 December 2011 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1958 and lives in Chișinău.

A. The investigation of bribe taking and the applicant’s arrest

6. At the time of the events the applicant was the manager of a State-owned veterinary clinic.

7. According to the official version of events, on 25 September 2006 a person (C.) came to the applicant’s office at around 9.10 a.m. and expressed his wish to have his dog vaccinated and to obtain a document required for travelling abroad with that dog. The applicant then told him that the process could last two to three months, but could be sped up. In exchange for 1,000 Moldovan lei (MDL, approximately 63 euros (EUR) at the time), the applicant said that he would issue C. with the relevant document without seeing the dog, knowing that it had not been vaccinated.

8. Immediately after that, C. went to Rîşcani police station in Chişinău and asked for help in catching the applicant in the act of receiving the bribe. In his report to the police made at that time, C. noted that he had asked for vaccination documents for his six-month old dog called “Ghera”, which was a variety of terrier.

9. In response to C.’s report, a number of procedural acts were carried out that same morning:

(i) V., an officer at Rîşcani police station, issued an order to initiate a criminal investigation, which was countersigned by a prosecutor on the same day at 4.40 p.m.;

(ii) a prosecutor from the Rîşcani prosecutor’s office issued an order giving subject-matter jurisdiction over the investigation of the case to Rîşcani police station, while noting that jurisdiction to handle such cases normally lay with the Centre for Fighting Economic Crime and Corruption.;

(iii) the Prosecutor General’s Office issued an order giving territorial jurisdiction to Rîşcani police station;

(iv) V. issued a search warrant for the applicant’s office (countersigned by the Rîşcani District Court’s investigating judge on 26 September 2006);

(v) V. issued a second order to trace the source of the money paid as a bribe;

(vi) a third order was issued by V., pursuant to which the money to be given as a bribe was to be marked with a special substance; and

(vii) MDL 1,000 in five banknotes of MDL 200 each was marked by V. in the presence of C. and a specialist at 11 a.m. and a record of this was drawn up.

10. At approximately 11.30 a.m. on the same day C. entered the applicant’s office and told him that he only had MDL 400. The applicant took the money, stamped and made the relevant notes in the dog’s passport. At around 12.30 p.m. officers from Rîşcani police station entered the applicant’s office and discovered MDL 400 in his pocket. The money was subsequently confirmed as bearing the specific mark made earlier for the purpose of proving the act of bribe taking.

11. On 27 September 2006 the applicant was released against an undertaking not to leave the city.

12. In the record of an interrogation made on 29 November 2006, it is recorded that the applicant declared that there were individuals who, for a long time, had wanted to frame him due to his past conflicts with them. He also mentioned a criminal complaint concerning an assassination attempt that took place on 4 April 2004 which had not been examined and which meant, in the applicant’s opinion, that someone had a motive for making a false accusation against him.

B. The criminal proceedings against the applicant

13. On 8 December 2006 the Rîşcani District Court transferred the case to the Botanica District Court in Chişinău for examination, as the latter court had territorial jurisdiction over the matter.

14. On 27 March 2007 the applicant’s lawyer asked the court to exclude all the evidence obtained as a result of the procedural acts of 25 September 2006, on the basis that it had been obtained in violation of territorial and subject-matter jurisdiction. The court twice postponed the hearing in order for the prosecution to submit evidence in this respect.

15. On 3 April 2007 the prosecution submitted the Prosecutor General’s order of 25 September 2006 (see paragraph 9 above) giving territorial jurisdiction to Rîşcani police station. The order had not been included in the file before that date. The applicant’s lawyer objected to the inclusion of that document in the file, stating that its existence had never previously been mentioned and that he had serious reasons for considering that it was backdated. According to the prosecution, the order had been mistakenly annexed to another file and had been discovered shortly before submitting it to the court. According to the Government, the applicant’s lawyer did not raise an objection during the hearing of 3 April 2007, but only did so in his final submissions to the court at a hearing on 5 April 2007.

16. On 17 April 2007 the Botanica District Court found the applicant guilty of soliciting and accepting a bribe. The court referred to such evidence as C.’s initial police report and subsequent statements, those of the officers at Rîşcani police station, and to the findings of the search at the applicant’s office on 25 September 2006, during which MDL 400 had been found in his pocket. The applicant was ordered to pay a criminal fine of MDL 60,000 (approximately EUR 3,550) and was prohibited from working as a veterinary surgeon for two years.

17. In respect of the allegation made by the applicant and his lawyer that the entire event had been the result of police entrapment, the court found as follows:

“The submission that the charges of bribe taking brought against [the applicant] were based on police entrapment is unsubstantiated, because [C.] declared under oath both during the criminal investigation and before the court that [the applicant] had solicited money from him in order to speed up his dog’s vaccination. Moreover, upon his arrest the accused took the money out of his pocket, which proves his intentional actions and [shows that it was] not entrapment”.

18. The applicant appealed. He noted the various procedural shortcomings concerning the timing of the issuance of the orders on 25 September 2006 and claimed that the investigative actions had taken place before the initiation of the investigation itself. He further submitted that it was strange that C. had gone to Rîşcani police station and not to the police station situated in the Botanica district, which had territorial jurisdiction to deal with the alleged offence. Nor had he gone to the police station in the district where he lived. Furthermore, according to the documents in the file, the police had given money to C. for him to bribe the applicant with, yet of the MDL 1,000 given to C. only MDL 400 had been passed on to the applicant, the remainder having disappeared. The applicant submitted that C. had been “artificially involved in the operation of handing money to me, which constitutes incitement to bribe taking”.

The applicant further claimed that C. had never had a dog and had therefore had no need to have a dog vaccinated for travel abroad. He referred to the inconsistency between C.’s description of his dog (stating initially that it was a type of terrier, but later that it was a type of pitbull, while the pet passport submitted to the court was for an English cocker spaniel dog, which, in addition, belonged to another person, G.V.). Moreover, according to the documents submitted to the court the dog had been born on 18 November 2004 and thus could not have been six months old on 25 September 2006, as stated by C. Furthermore, C. had refused to say whom he had wanted to visit abroad, even though he had previously stated that he had intended to visit friends, taking his dog with him.

19. On 31 May 2007 the Chişinău Court of Appeal upheld the lower court’s judgment. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower court word for word.

20. The applicant appealed on points of law, essentially repeating his arguments made before the lower courts.

21. On 24 October 2007 the Supreme Court of Justice upheld the lower courts’ judgments. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower courts word for word.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

22. The applicant complained that he had been incited to commit the crime of accepting a bribe. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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

24. The applicant argued that he had been the victim of entrapment. C. had not had a dog and thus had not had any need to ask for documents confirming the vaccination of a dog. Furthermore, C. had not had money for the vaccination or to pay a bribe and so the police had handed over money to him. However, C. had agreed to act as an agent provocateur for the police and they had given him the passport of a dog which had died prior to the relevant events and which had belonged to another person.

25. According to the applicant, the investigation was in fact initiated after his arrest, as was clear not only from the time when the decision was countersigned by the prosecutor (4.40 p.m., see paragraph 9 above), but also from its text, referring in the past tense to the fact that “[the applicant] has taken money from [C.] to speed up the issuing of the [relevant document]”. The applicant also noted that the decision giving subject-matter jurisdiction over the investigation of the case to Rîşcani police station (referred to above) mentioned the name of a prosecutor, but bore the signature of a person who remained unidentified.

26. The Government submitted that the applicant had not been a victim of entrapment. C. had had no ties to the police and had only made a report after the applicant had asked him to pay a bribe. Accordingly, the police had only become involved after the applicant had already initiated his criminal activity and they had received a report concerning his behaviour from C., a private individual. C. had confirmed this version of events in court and the courts had accepted this explanation. In addition, procedural guarantees against entrapment had existed, as the actions of the police had been subjected to ex post factum judicial review. Furthermore, the alleged procedural irregularities - such as the accusation that a criminal investigation had only been initiated after the bribe taking had taken place - were groundless, as the report by C. that he had been asked to pay a bribe had not sufficed in itself as grounds for initiating an investigation. Only after the police had obtained evidence that the applicant had committed a crime had they been able to officially start the investigation. Moreover, the decision to grant subject-matter jurisdiction to the Rîșcani police station was signed by a deputy prosecutor, without his name being separately indicated, as was the usual practice, and thus all the procedural requirements had been complied with.

2. The Court’s assessment

(a) General principles

27. The Court would highlight its Ramanauskas judgment (Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 49-74, ECHR 2008), in which it elaborated the concept of entrapment in breach of Article 6 § 1 of the Convention, as distinguished from the use of legitimate undercover techniques in criminal investigations, in respect of which there must be adequate safeguards against abuse.

28. In Teixeira de Castro v. Portugal (9 June 1998, §§ 31-39, Reports of Judgments and Decisions 1998-IV) it was important for the Court that there had been no objective suspicions that the applicant in that case had been involved in any criminal activity. Nor was there any evidence to support the Government’s argument that the applicant was predisposed to commit offences. On the contrary, he was unknown to the police and had not been in possession of any drugs when the police officers had sought them from him; accordingly, he had only been able to supply them through an acquaintance who had obtained them from a dealer whose identity remained unknown. Although Mr Teixeira de Castro had potentially been predisposed to commit an offence, there was no objective evidence to suggest that he had initiated a criminal act before the police officers’ intervention. The Court therefore rejected the distinction made by the Portuguese Government between the creation of a criminal intent that had previously been absent and the exposure of a latent pre-existing criminal intent.” (se also Ramanauskas, cited above, § 56).

29. The Court also found in Vanyan v. Russia (no. 53203/99, §§ 45-50, 15 December 2005) that the issue of entrapment could be relevant even where the relevant operation was carried out by a private individual acting as an undercover agent, when it had actually been organised and supervised by the police.

30. In Milinienė v. Lithuania (no. 74355/01, § 38, 24 June 2008) the Court found that there had been no police entrapment, basing its finding on the following considerations:

“To the extent that SŠ had police backing to offer the applicant considerable financial inducements and was given technical equipment to record their conversations, it is clear that the police influenced the course of events. However, the Court does not find that police role to have been abusive, given their obligation to verify criminal complaints and the importance of thwarting the corrosive effect of judicial corruption on the rule of law in a democratic society. Nor does it find that the police role was the determinative factor. The determinative factor was the conduct of SŠ and the applicant. To this extent, the Court accepts that, on balance, the police may be said to have “joined” the criminal activity rather than to have initiated it. Their actions thus remained within the bounds of undercover work rather than that of agents provocateurs in possible breach of Article 6 § 1 of the Convention (cf. the aforementioned judgment in the case of Teixeira de Castro v. Portugal, 9 June 1998, §§ 31-39, Reports of Judgments and Decisions 1998-IV; Sequeira v. Portugal, (dec.), no. 73557/01, ECHR 2003-VI).”

In reaching its conclusion that no entrapment had taken place in Milinienė, the Court also analysed whether the private individual who had informed the authorities of the applicant’s unlawful conduct had any ulterior motives (§ 39).

31. The Court has also held that where an accused asserts that he was incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention all evidence obtained as a result of police entrapment must be excluded. Where the information disclosed by the prosecution authorities does not enable the Court to conclude whether the applicant was subjected to police entrapment, it is essential in each case that the Court examine the decision-making procedure whereby the plea of entrapment was decided upon in order to ensure that the rights of the defence were adequately protected, in particular the right to adversarial proceedings and to equality of arms (see Ramanauskas, cited above, § 60; Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR 2004-X; and Khudobin v. Russia, no. 59696/00, §§ 133-35, ECHR 2006-XII (extracts)).

(b) Application of these principles to the present case

32. The Court notes that according to the prosecution a private individual (C.) went to the applicant’s office and was asked for a bribe in order to speed up the process of issuing vaccination documents for his dog. Following C.’s report to the police, they arranged for him to pay a second visit to the applicant’s office so as to prove the commission of the offence of bribe taking. As no police officer was directly involved, the present case does not concern undercover police work, but rather the acts of a private individual, acting under police supervision.

33. In order to verify whether the applicant was incited to commit the crime, the Court must determine whether he could be reasonably considered as having been engaged in the relevant criminal activity prior to the police involvement. In other words, it must be verified whether the applicant would have committed the crime in the absence of the alleged incitement.

34. The Court reiterates that where the police involvement is limited to assisting a private party in recording the commission of an illegal act by another private party, the determinative factor remains the conduct of those two individuals (see Milinienė, cited above, § 38). Accordingly, since the applicant accused C. of having incited the commission of the offence, it is necessary to examine the manner in which the domestic courts analysed C.’s conduct in the present case. In this respect the Court notes that the applicant argued before the domestic courts that C. had never had a dog. Accordingly, he had had no reason to visit the applicant’s office and to ask for vaccination documents. The pet passport which was included in the file concerned a dog of a different breed than that initially indicated by C. in his report to the police. Moreover, according to the applicant, and not disputed by the Government, that document mentioned the dog as belonging to another person, rather than to C. (see paragraph 18 above).

35. In the Court’s view, the above inconsistencies between C.’s version of events and the objective evidence (the dog papers) available at the time of deciding whether to record the applicant’s bribe-taking should have caused the police to have legitimate doubts or at least led to a more detailed check of the veracity of his complaint and of his motives. Indeed, if C. provided false information to the police about having a dog and needing to obtain papers for it, his credibility in respect of the alleged soliciting of a bribe by the applicant would also be shaken. In their turn, the domestic courts should have made a proper analysis of these inconsistencies and of the manner in which the police reacted to them.

36. The Court notes that the applicant clearly raised these arguments in front of the domestic courts, accusing C. of incitement with the assistance of the police. In such a situation, “it falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable. In the absence of any such proof, it is the task of the judicial authorities to examine the facts of the case and to take the necessary steps to uncover the truth in order to determine whether there was any incitement” (see Ramanauskas, cited above, § 70). However, rather than analysing these arguments, which as noted above were not completely groundless, all three levels of the courts relied on C.’s confirmation of his version of events and the fact that the applicant had knowingly accepted the bribe, based on him having taken the money out of his pocket (see paragraphs 17, 19 and 21 above). In other words, while the applicant directly challenged C.’s credibility, the courts simply relied on C.’s statements, without any examination of his credibility and of the possibility that C. had incited the applicant to commit the crime for any ulterior motives.

37. The Court also notes that there were no objective suspicions that the applicant had been involved in any criminal activity prior to the relevant events. Nor was there any evidence that he was predisposed to commit offences. The Government’s argument that the police could not initiate a criminal investigation against the applicant before they obtained evidence that he had actually committed a crime (see paragraph 26 above) only confirms this.

38. In conclusion, the Court considers, having regard to the foregoing, that the domestic courts failed to properly assess whether C.’s actions, acting on behalf of the police, had the effect of inciting the applicant to commit the offence of which he was subsequently convicted or whether there had been any indication that the offence would have been committed without such intervention. Although in the present case the domestic courts had reason to suspect that there was an entrapment, they did not analyse the relevant factual and legal elements which would have helped them to distinguish entrapment from a legitimate form of investigative activity (see, for instance, Khudobin v. Russia, no. 59696/00, § 137, ECHR 2006-XII (extracts)). In view of the above, and of the use of evidence obtained through C.’s active involvement under police supervision to convict the applicant, his trial was deprived of the fairness required by Article 6 of the Convention.

39. There has therefore been a violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

40. The applicant complained of a violation of Article 6 § 1 of the Convention in that the courts had failed to observe the principle of equality of arms and that they had given insufficient reasons for their decisions. He also complained under Article 6 § 3 of the Convention that the prosecution had failed to disclose to the defence in due time a document which could have proved police entrapment.

The Court considers that, while these complaints are in principle admissible, they do not raise an issue separate from that already examined above under Article 6 § 1 of the Convention. It will accordingly not examine them separately.

41. The applicant finally complained under Article 5 of the Convention that he had been detained in the absence of a reasonable suspicion that he had committed a crime.

Having regard to all the material in its possession, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

42. 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.”

43. The applicant did not submit a claim for just satisfaction.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 6 §§ 1 and 3 admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention concerning the complaint of entrapment;

3. Holds that there is no need to examine the remainder of the complaints under Article 6 §§ 1 and 3 of the Convention.

Done in English, and notified in writing on 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Josep Casadevall
Registrar President

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