CASE OF BULFINSKY v. ROMANIA
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
4. The applicant was born in 1979 and lives in Bucharest. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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 firstinstance 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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”). 18. 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. 19. Several hearings were held before the Bucharest County Court. 20. 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. 21. 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. 22. 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 pretrial detention. The court also confiscated the 1,965 tablets of MDMA that were left after laboratory tests had been carried out. 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. 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....