CASE OF PĂTRAŞCU v. ROMANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1986 and lives in Botârlău. 6. On 23 February 2007 X, a plain-clothes police officer from the Buzău County police organised crime unit, approached the applicant in a nightclub. According to a report drafted on 1 March 2007, the meeting had been planned in order to verify information received by the police that the applicant might have been dealing drugs. The report mentioned that X had discussed with the applicant, who claimed that he could get drugs and promised to call with more details. In a second report drafted on 14 April 2007 it was stated that the applicant had called X to ask whether he was interested in buying 2,000 ecstasy tablets at a cost of 10 euros (EUR) each. 7. On 18 April 2007 a prosecutor from the Buzău County department for the investigation of organised crime (“the organised crime department”) opened a criminal investigation against the applicant on suspicion of drug trafficking. A request to intercept his telephone conversations and make ambient voice recordings was authorised by a judge of the Buzău County Court. 8. On the same date the prosecutor from the organised crime department authorised the use of X as undercover police agent in order to determine the facts of the case, identify the offenders and obtain evidence. The prosecutor justified the issuing of the authorisation on the basis that there was reason to believe that the applicant was about to commit a drug trafficking offence. 9. In a report dated 17 May 2007 the chief of the Buzău County police organised crime unit stated that X had called the applicant several times in April and May in order to enquire when the transaction might take place. The report also mentioned that the applicant had replied on several occasions that he was not in possession of the drugs, which were to be brought into the country by friends of his who had not yet returned from abroad. 10. In the early evening of 19 July 2007 the applicant called X and set up a meeting for later that evening. He and a friend, G.G., picked up X by car. X was accompanied by Y, a colleague in plain clothes. The four of them drove to a petrol station where a meeting had been arranged with C.A.O. to buy drugs. The applicant and Y went inside the petrol station while X remained outside and talked to C.A.O. As the deal got underway in the car park of the petrol station, the case prosecutor and ten police officers suddenly intervened and arrested the applicant, C.A.O. and G.G. In the car driven by C.A.O. the police found 742 ecstasy tablets. The offence report drafted on the spot by the police was signed by everyone, including the applicant, without any objection. The police operation was recorded on video. 11. On 25 October 2007 the applicant was indicted with C.A.O. and G.G. for trafficking “high risk” drugs. 12. On 17 January 2008 the applicant and C.A.O. testified before the Buzău County Court. The applicant averred that he had acted as an intermediary for the meeting and subsequent deal between C.A.O. and X because the latter had asked him whether he could get drugs for him. Moreover, X had set the price for the drugs. C.A.O. stated that the drugs found on him had been for his own personal use and that he had had no intention of selling them. 13. The applicant’s lawyer argued before the court that the applicant had in fact been incited by X to act as an intermediary in the drug deal and requested that X be called to give evidence, along with two witnesses in the applicant’s defence. The court allowed the request. 14. On 14 February 2008 the court heard evidence from X, G.C. and one of the witnesses proposed by the applicant who appeared in court. X stated that the applicant had called him in order to arrange the drug deal without any incitement on his part. The applicant’s lawyer had the opportunity to cross-examine X. He asked whether the reports of 1 March and 14 April 2007 had been signed by him and whether the criminal investigation had already been open when he had been authorised to investigate undercover. The two questions were disallowed by the court because they were considered an attempt to disclose X’s identity. 15. The Buzău County Court gave judgment on 22 February 2008. It convicted the applicant of drug trafficking and sentenced him to six years’ imprisonment. The conviction was based on the reports of 1 March and 14 April 2007 and the offence report of 19 July 2007 (see paragraphs 6 and 10 above), as well as on transcripts of the applicant’s telephone conversations with X, ambient recordings of discussions between X and C.A.O. and the in-court testimonies given by the applicant, the codefendants and X. The court considered that the applicant’s allegations that he had been incited by X were clearly disproved by the abovementioned evidence taken as a whole. 16. The applicant appealed against the judgment. He alleged that X had exceeded his authority and that Y should have also been called to testify in court. He also claimed that X had incited him to commit the offence under coercion and that the first-instance court had failed to respond appropriately to his arguments on that issue. 17. On 26 May 2008 the Ploieşti Court of Appeal rejected the appeal. In reply to the applicant’s arguments, the court held that the authorisation and actions of the undercover police officer had been in accordance with the law. The statement of Y was irrelevant to the case since he had not directly witnessed the deal. The court considered that the applicant had not been incited by X since it was apparent from the evidence in the file that he had called the officer on several occasions and had planned the meeting of 19 July 2007 (see paragraph 10 above). 18. The applicant lodged an appeal on points of law (recurs), reiterating his previous arguments. 19. In a final judgment of 22 October 2008 the High Court of Cassation and Justice dismissed the appeal on points of law. Basing its findings on the reports of 1 March and 14 April 2007 (see paragraph 6 above), the court considered that there had been serious reason to suspect that the applicant would commit a criminal offence at the time of authorisation of the covert operation. It further noted that it was apparent from the documents in the file that X had acted lawfully. In addition, the information collected by X and the applicant’s active participation in the crime in question were supported not only by the police reports, but also by transcripts of the telephone conversations that the applicant had with C.A.O. and X. The court stated that it was clearly apparent from those transcripts that the applicant had initiated calls to X on two occasions in order to act as an intermediary in the drug deal. It also noted on this point that the applicant and the other co-defendants had signed the offence report without any objection (see paragraph 10 above). The applicant’s allegations concerning the unlawfulness of the covert operation and the police incitement were therefore considered to be ill-founded.