CASE OF CONSTANTIN AND STOIAN v. ROMANIA
Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed;Damage - claim dismissed
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
4. The applicants were born in 1979 and 1971 respectively. The first applicant lives in Bucharest, and the second in Afumaţi, Ilfov county. 5. 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. 6. 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”). 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. 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.” 29. The first applicant was also convicted of illegal possession of sixteen tablets of methadone. 30. 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. 31. 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. 32. 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. 33. Article 68 of the Code of Criminal Procedure reads as follows: “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.” 34. The relevant provisions of Law no. 143 read as follows: “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.” “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.” “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.” 35. 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....