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THIRD
SECTION
CASE OF BULFINSKY v. ROMANIA
(Application
no. 28823/04)
JUDGMENT
STRASBOURG
1 June
2010
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 Bulfinsky v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 11 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28823/04) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Cristian-Răzvan
Bulfinsky (“the applicant”), on 2 July 2004.
- The
applicant was represented by Mr Vasile Topârceanu, a lawyer
practising in Bucharest. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
- On
11 December 2008 the President of the Third Section decided to
communicate to the respondent Government the applicant's complaint
under Article 6 § 1 of the Convention that the criminal
proceedings against him had been unfair because of police entrapment.
It was also decided to examine the merits of the application at the
same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Bucharest.
- At
the beginning of April 2002 the police division responsible for
fighting organised crime and drug trafficking (“the police”)
received information that the applicant and his friends P.T. and D.C.
were trafficking in drugs. The three friends were ecstasy users. At
the time of the events, the applicant and D.C. were students.
- On
18 April 2002 the police sought authorisation from the prosecutor's
office to use undercover agents and a collaborator to follow the lead
regarding the suspects' alleged criminal activities. On the same day
the organised crime and drug-trafficking section of the prosecutor's
office at the Supreme Court of Justice (“the prosecutor's
office”) authorised two agents, referred to in the proceedings
as “Toni” and “Sven” (the latter being
introduced to the applicant and his friends as “Alex”),
and a collaborator, “Gotti”, to participate in the
operation.
A. The uncontested events on 29 April 2002
- On
29 April 2002 Sven met the applicant, D.C. and P.T. in a restaurant
(“restaurant E”) and agreed to meet with them again later
the same day.
- At
9.15 p.m. the applicant and P.T. were sitting with Alex on the
terrace of restaurant M and D.C. was sitting at the adjacent table
with some friends, when plain clothes police officers rose from the
neighbouring tables and arrested the three suspects. A yellow plastic
bag was taken from under the applicant's table and its contents
checked; the police noted that it contained bread, under which were
several packets fastened with brown tape which together contained
2,016 white tablets which later proved to be ecstasy.
- The
three suspects were arrested on suspicion of drug trafficking. The
police took photographs and videotaped the events. Images from the
operation were shown on the evening news.
B. The statements of the applicant, D.C. and P.T.
during the proceedings
- On
her arrest D.C. confessed to the prosecutor that she and P.T. had
taken part in drug trafficking. However, she withdrew her confessions
before the first instance court, claiming that she had been
coerced into making them by the police with the promise that if she
wrote down what she was told to write, she would be released after
ten minutes.
- The
applicant and his friends claimed that they had been contacted by
Gotti, whose real name was Bogdan, and who was a friend of D.C. They
gave the authorities his full name and address for further
investigation. Gotti had told them that Alex had various objects
(clothes and watches) for sale at reasonable prices. They finally
agreed to meet Alex and at 4.30 p.m. on 29 April they,
together with Bogdan, went to restaurant E. They sat down with Alex,
who did not have the merchandise with him. Later that day the three
friends were at bar N. when Bogdan told them that Alex was at
restaurant M and could meet them again. The applicant and Bogdan left
in Bogdan's car. After a while, they called D.C. and P.T., who had
stayed behind, and told them that Bogdan had forgotten a yellow
plastic bag under their table at the bar and asked them if they could
bring it to restaurant M as it contained food for Bogdan's wife, who
was ill.
- At
9.15 p.m. the applicant and Bogdan arrived at restaurant M and sat at
Alex's table. Ten minutes later P.T., who was carrying Bogdan's
plastic bag, and D.C., joined them. P.T. sat at Alex's table while
D.C. sat at the next table with some acquaintances.
- When
Alex went to the toilet, plainclothes police officers intervened,
expecting to find exactly 2,000 tablets of ecstasy in the bag under
the table.
- In
their statements, the applicant and his friends insisted that the
drugs had in fact been given to the undercover agents by the police
for the purpose of the covert operation. In support of their
statements they pointed out that despite their constant surveillance
over the previous few days the police could not explain where the
friends had obtained the drugs.
C. The criminal proceedings against the applicant
1. The indictment
- The
applicant and his friends were arrested and taken into custody on the
evening of 29 April 2002, on suspicion of trafficking in drugs. Their
detention was maintained by the courts throughout the proceedings.
- The
prosecutor's office heard evidence from the applicant, D.C. and P.T.,
and from two eyewitnesses who had been present on the terrace at
restaurant M, and examined the written records of statements by Toni
and Sven. At the prosecutor's request, both the applicant's and
D.C.'s flats were searched by the police. No drugs or other illegal
substances were found.
The
prosecutor concluded that on 29 April 2002 Gotti had informed Toni
that the three persons were preparing a transaction involving MDMA
tablets (methylenedioxymethamphetamine). Toni
had then contacted Sven, who had met with the suspects to secure the
transaction. According to Sven's statements, the suspects had offered
to sell him 4,000 tablets of MDMA for 4 US dollars each.
- On
21 June 2002 the prosecutor's office committed the applicant, P.T.
and D.C. for trial on charges of drug-trafficking, in violation of
Law no. 143/2000 on the fight against drug trafficking and
illegal drug use (“Law no. 143”).
- It
also decided to sever the criminal investigations from those
concerning another participant in the trafficking, Bogdan, who had
not yet been identified by the police. On 13 February 2003, the
prosecutor's office at the Supreme Court of Justice identified Bogdan
as being the same person as Gotti and closed the investigation
against him.
2. Proceedings before the first-instance court
- Several
hearings were held before the Bucharest County Court.
- The
three accused denied their involvement in drug trafficking and
claimed that they had been entrapped by the police. They repeatedly
stated that Bogdan had also been present at restaurant M.
- The
defence lawyers insisted on the importance for the court of hearing
evidence from Bogdan in the presence of the defendants. They also
requested the police to produce the bag and the packets in which the
tablets had been found and to collect fingerprints from them. They
considered that the court should see the video tapes of the events.
Lastly, they asked for a confrontation between the applicants, which
would allow them to prove that the police had put pressure on them
and made them promises in order to obtain the initial declarations.
The
court did not hear that evidence.
- The
County Court gave judgment on 15 April 2003. It found the three
accused guilty of drug trafficking and sentenced them each to four
years' imprisonment. It deducted from the sentence the time spent in
pre trial detention. The court also confiscated the 1,965
tablets of MDMA that were left after laboratory tests had been
carried out.
- The
County Court dismissed the defence arguments on the ground that under
Law no. 143 statements made by undercover agents and their
collaborators can constitute evidence. The court was satisfied that
those statements had not been obtained illegally and considered that
the defence argument to the contrary could not taint the evidence. It
also considered that the intention of the accused to sell drugs was
evidenced by their entering into negotiations with Toni and Gotti,
which in turn led to their authorising Sven to make the transaction
with the defendants and obtain the drugs from them.
In
reaching its conclusion, the County Court relied on the statements
made by the suspects and the undercover agents Toni and Sven to the
police, as well as the declarations made by the applicant before the
court. It gave precedence to the statement given by D.C. during the
investigations as it considered that her withdrawal of her initial
statement to the police was unjustified, as she had not proved that
she had been coerced into making it.
3. The appeal proceedings
- All
the parties appealed against the judgment of 15 April 2003. The
defence counsel reiterated that the evidence gathered against the
defendants was illegal, that the drugs had belonged to the police and
that Bogdan should be heard by the court.
- In
a decision of 29 October 2003 the Bucharest Court of Appeal upheld
the County Court's findings on the facts of the case and its
examination of the participants' guilt. It considered, however, that
the County Court had erred in determining the sentence, in that it
had not taken into account the seriousness of the crimes committed
and the fact that, as students, the participants had a higher level
of education which should have allowed them to comprehend the gravity
of their deeds. It therefore increased the sentence to twelve years'
imprisonment for each defendant.
- In
a final decision of 20 April 2004 the High Court of Cassation and
Justice dismissed the defendants' appeals in cassation and upheld the
Court of Appeal's decision.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
- The
relevant provisions of the Code of Criminal Procedure and of Law no.
143 are set out in Constantin and Stoian v.
Romania, nos. 23782/06 and 46629/06, §§
33-34, 29 September 2009.
- 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. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had not received a fair trial in the
criminal proceedings against him, alleging a violation of Article 6
§§ 1 and 3 of the Convention, which read as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing... Judgment shall be pronounced publicly...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;”
- In
particular, he claimed that he and his friends had been entrapped by
the undercover agents and their collaborator and that the drugs found
at the scene had belonged to the police. He also complained that
there was no lawful evidence of their involvement in drug trafficking
and that the courts had failed to examine essential evidence; in
particular, they had failed to ask for fingerprints to be taken from
the bag containing the drugs, to take
a statement from the key
witness Bogdan, and to hear the transcription of the telephone
conversations that had taken place between the co-defendants and the
undercover agents. In addition, he considered that the prosecutor and
the courts had not correctly established the legal classification of
the crime allegedly committed.
Under
the same Article, the applicant complained that the decisions had not
been pronounced publicly.
A. Admissibility
- The
Court notes that this complaint 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 supported the prosecutor's version of the facts, as
confirmed by the domestic courts.
- They
submitted a detailed description of the procedure on covert police
operations in Romania and pointed out that a system permitting such
operations was common to many 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
entrapment, and considered that the evidence in the file supported
their submission.
- They
also rejected the allegations of unfairness in the proceedings. In
their view, the courts had given a detailed interpretation of the
evidence and had explained their conclusions thoroughly.
- 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, but also on the defendants'
statements given at various stages of the proceedings.
- Lastly,
quoting Klaas v. Germany (22 September 1993, § 29,
Series A no. 269), the Government pointed out that it is not
normally within the province of the European Court to substitute its
own assessment of the facts for that of the domestic courts and, as a
general rule, it is for these courts to assess the evidence before
them.
b) The applicant
- The
applicant submitted that there was no convincing evidence in the file
that he had taken part in drug trafficking, and he reiterated that no
drugs had been found on him at the time of his arrest.
- He
argued that he had not participated in an operation involving the
sale of drugs, in so far as the drugs had passed from one police
agent's hands to the other without any intention of them being sold.
In his opinion, it was merely a police operation aimed at gathering
evidence. He reiterated that the courts had not heard the video or
audio recordings of the operation; that no fingerprints had been
taken from the bag containing the drugs; and that there had been no
confrontation between the defendants and the undercover agents and
their collaborator, who had never even been heard by the prosecutor
or the courts.
2. The Court's assessment
- The
Court reiterates its recent case-law on Article 6, in which it drew a
detailed distinction between the concept of entrapment and 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 entrapment. 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 thus has 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 a number of
considerations. There are no indications that the applicant or the
co-defendants have been previously involved in drug related
crimes. The Court notes that the
authorities did not give details or refer to any objective evidence
concerning unlawful behaviour by the suspects prior to the incidents
of 29 April 2002. Moreover, no drugs were found either in the
applicant's possession or in his home (see paragraph 16 above).
- The
Court also notes that the parties gave different interpretations of
the events that occurred on 29 April 2002. According to the
authorities, the applicant and his co-defendants had agreed to broker
the deal. However, the applicant, claiming police entrapment, stated
that he had not been aware of the content of the bag, which, in fact,
belonged to the police collaborator Bogdan; he also maintained that
the drugs in the bag had belonged to the police.
- In
the light of these divergent interpretations, it is essential that
the Court examine the procedure whereby the plea of incitement was
determined 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,
§§ 60-61, and Malininas, § 34, both cited
above and Khudobin v. Russia, no. 59696/00, § 133,
ECHR 2006 XII (extracts)).
- In
convicting the applicant and his co-defendants, the courts relied
exclusively on the evidence obtained during the investigations,
namely written reports by the undercover agents and the statements
made by the suspects, as well as the defendants' testimonies before
the first-instance court.
The
courts did not reply to the defence's requests for evidence, in
particular in relation to Bogdan's involvement and role, or to their
requests for fingerprints to be collected from the bags containing
the drugs or for the recording of the events to be heard by the
courts. Furthermore, the courts did not hear the undercover agents.
The defence thus had no opportunity to cross-examine witnesses. The
courts also decided to give precedence to the statements obtained by
the investigators and considered that those given before the
first-instance court had been false.
- In
the light of the defendants allegations as to the police involvement,
the domestic courts could not have ensured the respect of the
principle of fairness, and in particular the equality of arms,
without hearing evidence from Bogdan and the undercover police
officers and without allowing the defendants to question, even in
writing, those persons. Furthermore, the court should have examined
or at least given more thorough explanations to why it rejected the
other requests for evidence.
- The
Court 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, even when the two are in conflict (see Doorson v. the
Netherlands, 26 March 1996, § 78, Reports of Judgments
and Decisions 1996 II). However, the Court considers that
the reasoning given by the County Court to justify the precedence
given to D.C.'s statements to the investigators might raise an issue
as to the respect of the rights of the defence.
- Lastly,
the Court notes the summary manner in which the domestic courts
rejected the allegations of police entrapment. It notes that the
common ground of the divergent interpretations given by the parties
of the facts of the case is that the applicant and his friends
negotiated with Gotti/Bogdan and then met with Sven.
- In
conclusion, while mindful of the importance and the difficulties of
the task of the investigating agents, the Court considers, having
regard to the foregoing, that the domestic courts did not investigate
sufficiently the allegations of entrapment. For these reasons the
applicant's 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 foregoing conclusion makes examination
of the remainder of the complaint redundant.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant considered that, in the circumstances of the case, the
sentence imposed on him constituted a violation of Article 3 of the
Convention.
- He
also raised several complaints, under Article 5, about his arrest and
pre-trial detention, in particular concerning the imposition of that
preventive measure and its repeated extension by the courts.
- The
applicant complained that his sentence had been increased by the
Court of Appeal solely because he was a student, which in his view
constituted discrimination under Article 6 § 1 of the Convention
taken together with Article 14.
- Under
Article 7 of the Convention, the applicant complained that he had
been convicted of a crime that had never existed, in so far as he had
been entrapped.
- The
Court considers that the issues raised by the applicant under
Articles 3, 7 and 14 are simply a reiteration of those already raised
and examined under Article 6.
In
addition, the Court notes that while a person may be humiliated by
the mere fact of being criminally convicted, what is relevant for the
purposes of Article 3 is that he should be humiliated not simply by
his conviction but by the execution of the punishment (see Tyrer
v. the United Kingdom, 25 April 1978, § 30, Series A no.
26). Nothing in the case indicates such humiliation, and the
applicant has failed to substantiate his claims to the contrary.
Lastly, the Court notes that the crime of which the applicant was
convicted is prohibited by Law no. 143. The Article 7 complaint is
thus unsubstantiated.
- Therefore,
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.
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.
- As
to the complaints raised under Article 5, the Court notes that the
applicant's pre-trial detention ended with the adoption of the
judgment of 15 April 2003, that is, more than six months before
the lodging of this application on 2 July 2004 (see Mujea v.
Romania (dec.), no. 44696/98, 10 September 2002, and
Negoescu v. Romania (dec.), no. 55450/00, 17 March
2005).
- It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
III. 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
applicant claimed 109,000 euros (EUR) in respect of pecuniary damage,
broken down as follows:
– EUR
4,000 represents the salary he would have earned from 2002 to 2004 if
he had continued in the employment he had at the date of his arrest;
– EUR
105,000 represents the salary he would have earned from 2004, when he
was due to graduate from University, to date.
He
also claimed EUR 105,000 in respect of non-pecuniary damage.
- The
Government argued that the applicant had not justified his claims and
that there was no causal link with his conviction.
They
also considered that the finding of a violation constituted in itself
sufficient just satisfaction for the non-pecuniary damage alleged by
the applicant.
Lastly,
the Government pointed out that, if the Court found that the criminal
proceedings had not been fair, the Code of Criminal Procedure
provided for the reopening of the proceedings before the domestic
courts.
- The
Court acknowledges that the applicant has the option of seeking the
reopening of the proceedings under domestic law.
As to
the damages sought by the applicant, the Court does not discern any
causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim. On the other hand, it
awards the applicant EUR 10,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant 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
- Declares the complaint concerning Article 6
§ 1 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of the
principle of fair trial enshrined in Article 6 § 1 of the
Convention;
- 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 applicant, within three months of
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 on 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 amount 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 1 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
