VAYSER v. ESTONIA
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
The applicant, Mr Aleksey Vayser, is an Estonian national who was born in 1975 and lives in Tallinn. He was represented before the Court by Mr L. Olovjanishnikov, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a manager of B.E.I. Survey OÜ, a private limited company authorised to monitor the conformity of liquid fuels to applicable norms and to issue the pertinent certificates. On 30 May 2003 Zh., who was interested in entering the liquid fuels business and explored the prices for their storage and certification, visited B.E.I. Survey OÜ and met the applicant. The latter gave Zh. a price list for the analyses performed by the company. According to Zh., the applicant told him that it was possible to issue certificates of conformity in respect of fuel that did not actually conform to the applicable quality standard if the fuel was to be sold in the countryside, in smaller places where there was no control. According to Zh., the applicant said that there would be “possibilities” if they could find a common language and that in such a case fuel samples could be brought by Zh. himself, otherwise a representative of the laboratory had to take the samples from the fuel tanks. The applicant told him that if he was not present he would be replaced by D., an expert in the company. Zh. agreed with the applicant that he would come the following week with the samples. On 2 June 2003 Zh. reported to the police that conformity certificates for fuel not actually conforming to the applicable standard could be obtained from B.E.I. Survey OÜ. On the same day a criminal investigation was initiated into the suspected taking of bribes by the applicant and D. Zh. was interviewed as a witness and he agreed to co-operate with the police to simulate the offence of bribery. On 3 June 2003 the chairperson of the Tallinn Administrative Court (halduskohus) authorised interception and undercover audio and video recording of conversations between Zh., the applicant and D., as well as simulation of the offence of bribery by Zh. in order to entrap the applicant. The authorisation was for a 15-day period and remained valid until 2 July 2003. It could be appealed against within 30 days. On the same day the police officers took samples from fuel brought by Zh. According to him it was a mixture of fuels conforming and not conforming to the standards. A 1.5-litre plastic bottle with fuel was given to Zh. for the simulation of the offence. In the afternoon of 4 June 2003 Zh. went to the applicant’s office and gave him the fuel sample for analysis, saying that he had 20 cubic metres of fuel on a truck and that customers who wished to buy it wanted to see a conformity certificate for it. Zh. and the applicant discussed the fee for the analyses; the applicant named different sums around 6,000 Estonian kroons (EEK; approximately 380 euros (EUR)), apparently on the basis of the price list. The applicant asked if Zh. wanted the true information about the quality indicators; Zh. replied in the affirmative adding that if anything did not match the applicant could give him a call. The applicant agreed. Zh. gave him EEK 3,000 (EUR 190) in cash without receiving an invoice. The analyses in respect of the fuel were actually carried out by a laboratory of a different company, with the applicant’s company serving as intermediary. In the evening of 4 June 2003 the applicant called Zh. and said that the results of the tests were not good and that several indicators were not in compliance with the applicable standard. He asked Zh. what he would propose and whether they would proceed. Zh. expressed certain doubts but then agreed with the applicant that the test results were not of substantial importance and added that the fuel would in any event be used in the countryside in tractors. They agreed to meet the next day. On 5 June 2003 Zh. went to the applicant’s office. The applicant said that the analyses had been completed and that the results were bad. They agreed that there would be no problem if the fuel was to be used in tractors. The applicant gave Zh. a certificate indicating that the fuel conformed to the standard. He wrote his own and D.’s signatures on it. Zh. paid the applicant EEK 4,000 and received an invoice in the amount of EEK 3,307.85 (EUR 210). On the same day the police searched the applicant’s office and seized the cash, the invoice, the certificate and some other documents. The applicant was interviewed as a suspect. He was represented by a lawyer throughout the criminal proceedings. On 20 June 2003 the applicant concluded a plea-bargain agreement with the prosecution. On 30 September 2003 the Tallinn City Court (linnakohus) examined the case. The applicant pleaded guilty to the charge of falsification of an official document but not that of taking a bribe. He alleged that the money he had received had been a fee received by his company. As the applicant did not plead guilty to all the charges, the court discontinued the summary proceedings and remitted the case to the prosecution with a view to proceeding on general grounds. On 30 October 2003 the bill of indictment was drawn up. The applicant was charged with taking a bribe and falsification of an official document. According to the charges, he had taken a bribe in the sum of EEK 7,000 (EUR 450) from Zh. in return for issuing a certificate of conformity in respect of fuel that did not actually conform to the applicable quality standard. He had also forged the signature of D., an expert at B.E.I. Survey OÜ, on the certificate. On 29 April 2004 the Tallinn City Court convicted the applicant as charged. He was sentenced to two years’ imprisonment, six months of which were to be served immediately and the remainder suspended. According to the judgment, the applicant pleaded guilty to the falsification charge. He denied the charge of taking a bribe, arguing that Zh. had paid according to the price list and that the price for the analyses would have been EEK 7,000 regardless of their results. He had not been able to issue the receipt because the police had come in before. According to the applicant, he had stated higher quality indicators on the certificate because Zh. had asked him to do so. Zh. had explained that the fuel would be used for agricultural purposes, and according to the applicant such fuel could indeed be used, in compliance with the GOST (государственный стандарт; Soviet, later Commonwealth of Independent States, standard) norms, in tractors of Russian origin. According to Zh., who gave evidence in court, the security police had provided him with a bottle of fuel which did not conform to the applicable quality standard and the bribe money. He had agreed with the applicant that certain indicators would be “improved” on the certificate. The City Court also heard submissions from two witnesses from companies which had actually carried out the fuel analyses at the request of the applicant’s company, and two employees of the applicant’s company – the accountant and D., who stated that he had not signed the certificate in question. It also examined video and audio recordings of the meetings and conversations between Zh. and the applicant and various written evidence, including the transcripts of the recordings. The City Court established that the applicant had falsified the fuel test results in respect of three indicators, whereas in the case of nine indicators no analyses had been made and random entries to match the applicable norms had been written on the certificate. Furthermore, the certificate had been falsified in that it indicated that D. had taken the sample from a certain vehicle – whilst in fact it had been Zh. who had brought a bottle containing the fuel – and the applicant had forged D.’s signature. The court considered that the applicant’s explanations concerning the price of the analyses and of the certificate, as well as the sums on the invoice, were inconsistent. It examined his submissions at various stages of the proceedings, price lists and accounting documents and concluded that the whole amount of EEK 7,000 had to be considered as a bribe and not a payment for a service rendered to Zh. The court ordered the transfer back to the state budget of the sum of EEK 7,000 used by the authorities in the covert operation. In determining the applicant’s sentence, the City Court noted that he had discredited the officials and institutions authorised to certify the quality of liquid fuels. The applicant appealed against the City Court’s judgment in so far as his conviction of taking a bribe was concerned. He did not challenge his conviction on the falsification charge. In respect of bribery, he argued that the City Court had been wrong to consider the money in question as a bribe. He also noted, in the context of the sentence given by the first-instance court, that the police had simulated the offence, that is, deliberately created the circumstances constituting an offence and had sought such a result. Therefore, the question arose as to who had been discredited. He admitted that simulating an offence was in principle authorised by law but insisted that in this case the police incitement had to be taken into account as a mitigating circumstance, because otherwise the offence might not have been committed. On 26 May 2004 the Tallinn Court of Appeal (ringkonnakohus) dismissed the applicant’s appeal and upheld the City Court’s judgment. It held, inter alia, that the fact that the bribe had been offered in the course of simulation of an offence – a measure authorised under the law – had no effect on the question of the applicant’s guilt or his punishment. The court found that neither the police nor the undercover agent could be considered the instigators of the offence. The applicant appealed against the Court of Appeal’s judgment, arguing that under the Surveillance Act (Jälitustegevuse seadus) the surveillance procedure could be started if there was information – and if this information was insufficient to initiate a pre-trial criminal investigation – concerning a criminal offence in the first degree being prepared or committed or having been committed, or concerning a criminal offence in the second degree having been committed intentionally, if the latter carried a sentence of at least three years’ imprisonment. Thus, there had to be sufficient information that an offence was being planned or committed. However, in the present case no offence had been being planned or committed and the criminal offence had been simulated without the existence of any of the information required by the Surveillance Act, such information having only been created by way of the simulation. Accordingly, there had been an incitement and there was good reason to believe that without it no offence would have been committed. He also reiterated that the simulation of the offence should have been considered as a mitigating circumstance. On 18 August 2004 the Supreme Court (Riigikohus) refused the applicant leave to appeal. Section 2 of the Surveillance Act (Jälitustegevuse seadus), as in force at the material time, provided that surveillance was unlawful unless carried out in cases and according to the procedure foreseen by that Act and in pursuance of the goals contemplated therein. It further provided as follows: “(1) The goal of surveillance shall be to gather information and perform other actions authorised by this Act that are necessary for: 1) prevention of criminal offences being prepared or committed; 2) discovering criminal offences that have been committed, finding persons who have committed criminal offences, compensating for damage caused by criminal offences and clarifying other circumstances that have an important bearing on criminal proceedings; ...” “(1) The reasons for the commencement of the surveillance procedure are: 1) the need to establish truth in a criminal case; ... 3) information concerning a criminal offence in the first degree being prepared or committed or having been committed or concerning a criminal offence in the second degree having been committed intentionally if the latter carries a sentence of at least three years’ imprisonment, if this information is insufficient to initiate a pre-trial criminal investigation; ...” Sections 12(2)(4) and 13 of the Act provided that the police could, with the authorisation of the Tallinn Administrative Court (halduskohus), simulate criminal acts in order to arrest a criminal offender or for the purpose of investigating a criminal offence. The authorities authorised to carry out surveillance could include adults in temporary or permanent secret collaboration with their consent (section 14(1)). Article 4 § 2 of the Penal Code (Karistusseadustik) provided that offences carrying a fine or a sentence of up to five years’ imprisonment were criminal offences in the second degree. Section 294 § 1 of the Penal Code provided that the criminal offence of taking a bribe carried a sentence of one to five years’ imprisonment. Section 299 § 1 provided that the criminal offence of falsification of an official document carried a fine or a sentence of up to one year’s imprisonment.