CASE OF GRBA v. CROATIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);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)
Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
6. The applicant was born in 1965 and lives in Sarajevo, Bosnia and Herzegovina. At the time of the introduction of his application, the applicant served a prison sentence in Croatia. 7. During June and July 2008 the Istria Police Department (Policijska uprava istarska; hereafter: “the police”) received several complaints concerning the use of counterfeit euro banknotes in Istria. 8. The video surveillance recordings made in one of the shops where the counterfeit currency was used revealed that a certain C.M. had paid using several counterfeit 100 euro notes. 9. According to a police report dated 21 July 2008, further unspecified investigative police work identified the applicant as the person who had supplied a total of 3,000 counterfeit euros to C.M. The report also claimed that the applicant was expected to return from Bosnia and Herzegovina to Croatia for the purpose of uttering a further 20,000 counterfeit euros and, if that proved to be successful, he would bring a further 200,000 counterfeit euros with a view to uttering them in Istria. 10. Acting on the evidence presented in the police report (see paragraph 9 above), on 21 July 2008 the Pula County State Attorney’s Office (Županijsko državno odvjetništvo u Puli) asked an investigating judge from the Pula County Court (Županijski sud u Puli) to authorise the use of special investigative measures in respect of the applicant, namely tapping his telephone, covertly monitoring him using undercover agents, and conducting a simulated purchase operation. 11. The investigating judge granted the request and on the same day issued an order for the use of special investigative measures. The relevant part of the statement of grounds reads: “The request of the [Pula County State Attorney’s Office] is well-founded. As the materials and information available to the police suggest that there is probably cause to believe that Zoran Grba, a national of Bosnia and Herzegovina, engages in the offence of currency counterfeiting under Article 274 §§ 1 and 2 of the Criminal Code, and given that, in the view of the investigating judge, the investigation cannot be efficiently carried out by other means, or would be extremely difficult, the well-founded request of the [Pula County State Attorney’s Office] should be granted and the requested measures are hereby ordered with regard to Zoran Grba as indicated in the operative part of this order. These measures will be implemented by the police between 21 July and 21 November 2008.” 12. On 6 August 2008 the Pula County State Attorney’s Office informed the investigating judge that the applicant also used another telephone number, and requested an authorisation for the tapping thereof. 13. On the same day the investigating judge granted the request, finding that there were no new facts or circumstances suggesting that the use of the special investigative measures in respect of the applicant should be discontinued. 14. Meanwhile, on the same day, the applicant met an undercover police agent who purchased one counterfeit 100 euro note from him. 15. In the ensuing period several further meetings and contacts between the applicant and the undercover agent took place. On 12 August 2008 the undercover agent purchased 149 counterfeit 100 euro notes from the applicant, and on 17 October 2008 the applicant sold him a further sixtyfour counterfeit 100 euro notes. 16. On 17 November 2008 the police informed the Pula County State Attorney’s Office of the actions taken through applying special investigative measures. The police stated that the applicant’s arrest had initially been planned for 17 November 2008, when he was supposed to come to Croatia for the purpose of selling further counterfeit euro banknotes to an undercover agent but he had postponed that meeting. The police therefore requested an extension of the use of special investigative measures in order to identify and arrest all those involved in the uttering of the counterfeit banknotes and to collect evidence concerning the offence at issue. 17. On 18 November 2008 the Pula County State Attorney’s Office made a fresh request for the use of special investigative measures in respect of the applicant. 18. The investigating judge granted the request and on the same day issued an order extending the use of special investigative measures for a further month. The judge found that the grounds set out in his order of 21 July 2008 remained valid (see paragraph 11 above) and that the information provided by the police suggested that it was necessary to extend the use of special investigative measures in respect of the applicant for a further month. 19. On 19 November 2008 the Pula County State Attorney’s Office asked for corrections to be made to the order in relation to an incorrect phone number in its request of 18 November 2008 and also in respect of the omission of another phone number used by the applicant. The investigating judge granted this request on 21 November 2008. 20. On 22 November 2008 the applicant, accompanied by his brother D.S., met the undercover agent in Solin. On that occasion he sold him 600 counterfeit 100 euro notes for 21,000 euros (EUR). Following the illicit transaction, the applicant and D.S. were arrested by the police. 21. After the arrest the applicant and his car were searched. The police found and seized EUR 21,000 in cash. 22. On 23 November 2008 the police lodged a criminal complaint with the Pazin Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Pazinu) against the applicant on charges of currency counterfeiting. No criminal complaint was lodged against D.S. 23. On the same day the applicant was brought before an investigating judge of the Pula County Court for questioning, during which he remained silent. The investigating judge ordered his remand in custody. 24. The investigating judge also heard D.S. as a witness but he invoked his testimonial privilege as the applicant’s brother and gave no evidence. 25. Following a request for the opening of a judicial investigation in respect of the applicant, on 26 November 2008 the investigating judge questioned the applicant, but the applicant again remained silent. On the same day, the investigating judge opened an investigation in respect of the applicant in connection with suspected currency counterfeiting relating to the four occasions on which he had sold the counterfeit banknotes to the undercover agents. 26. In the course of the investigation, the investigating judge obtained an expert report stating that the 600 banknotes of 100 euro which the applicant had sold to the undercover agents were counterfeit. The judge also decided that the undercover police agents would be questioned under the pseudonyms E.K. and A.B. via video link and with distorted images and sound. 27. On 23 January 2009 the investigating judge questioned the undercover agent E.K. The applicant’s lawyer was present during the questioning. 28. In his statement E.K. said that his first contact with the applicant had occurred sometime in late July 2008, when they had spoken on the phone. According to E.K., he had not told the applicant the reason for calling him, but at the time the applicant had been in Sarajevo so they had been unable to meet. E.K. also explained that following this initial contact, he had met the applicant in a restaurant in Duga Resa at the beginning of August 2008. On that occasion they had started talking about business. The applicant had asked him what he was interested in and E.K. had replied that he had heard that the applicant was offering some good “papers”. The applicant had replied that it was true and asked E.K. what he was really interested in and E.K. had repeated that he had heard that the applicant was offering good “papers”. However, E.K. was no longer able to recall the further details of this conversation with the applicant. E.K. explained that during this first meeting the applicant had sold him a 100 euro note for 300 Croatian kunas (HRK) (approximately EUR 40), which E.K. had accepted. According to E.K., the applicant had also said that if E.K. wished, they could arrange a further purchase of a larger quantity of such banknotes. 29. E.K. stated that eight to ten days following his first meeting with the applicant, they had met again in a car park near Zagreb. On that occasion the applicant had offered E.K. the opportunity to buy a further 15,000 counterfeit euros. E.K. had accepted the offer and had paid EUR 6,000 for the counterfeit euros. E.K. testified that a further meeting with the applicant had taken place in Odra after a phone call from the applicant. On that occasion the applicant had asked E.K. whether he knew anybody who would be interested in the purchase of larger quantities of counterfeit currency and E.K. had replied that he had a friend ‒ in actual fact another undercover agent, A.B. ‒ who would be interested. According to E.K., the next meeting with the applicant had taken place some time in midOctober 2008 in a restaurant in Lupoglav. E.K. explained that on that occasion he had been accompanied by the second undercover agent, A.B. On that occasion E.K. had bought 6,500 counterfeit euros (it later turned out that the amount was in fact 6,400 euros) from the applicant for EUR 2,500. Following this exchange they had been in contact by phone but they had not met. 30. The investigating judge also questioned the undercover agent A.B. in the presence of the applicant’s lawyer. 31. During his questioning A.B. described the circumstances in which he had first met the applicant in the restaurant in Lupoglav in October 2008 (see paragraph 29 above). According to A.B., the applicant had asked him whether or not he wanted to buy counterfeit currency. A.B. had then expressed interest in doing so and the applicant had stated that he could supply 50,000 counterfeit euros, which he would be prepared to bring to Split. They had then agreed to stay in touch and exchanged phone numbers. A.B. also stated that the applicant had called him in early November 2008 and asked him whether he wanted to buy the counterfeit euros. Afterwards they had had several telephone conversations until the applicant had finally called A.B. and offered him 60,000 counterfeit euros for the price of EUR 21,000. A.B. had accepted that and they had met in a shopping centre in Solin. The illicit exchange had then taken place and the applicant had afterwards been arrested. 32. After completion of the investigation, the investigating judge forwarded the case file to the Pazin Municipal State Attorney’s Office for further examination and a decision. 33. On 17 February 2009 the Pazin Municipal State Attorney’s Office indicted the applicant in the Pazin Municipal Court (Općinski sud u Pazinu) on charges of currency counterfeiting in connection with the four occasions on which he had sold counterfeit euros to the undercover police agents (see paragraphs 14-15 and 20 above). 34. A three-judge panel of the Pazin Municipal Court confirmed the indictment on 10 March 2009 and sent the case for trial. 35. At a hearing on 27 March 2009 the applicant, represented by a lawyer, pleaded not guilty with regard to the first three instances of the alleged uttering of counterfeit notes (see paragraphs 14-15 above), whereas he considered himself “responsible” for the transaction on 22 November 2008 because he had “given in to the inducement” by the police. 36. At the same hearing the Pazin Municipal Court questioned the undercover police agents E.K. and A.B. The undercover agent E.K. stated that he could no longer say who had initiated a meeting specifically for the purchase of the counterfeit currency and he was unable to answer the question whether the applicant should have been arrested as soon as he had sold the first counterfeit 100 euro note to him. E.K. was also unable to say whether he would have been authorised to arrest the applicant. The undercover agent A.B. reiterated the statement he had given to the investigating judge. 37. Following the questioning of the witnesses, the trial bench examined the secret surveillance recordings and asked the police to inform them whether the euros paid for the counterfeit notes at the first three meetings (see paragraphs 14-15 above) had been traced and confiscated. 38. On 6 April 2009 the police replied that they had neither traced the money which had been paid for the purchase of the counterfeits nor confiscated it from the applicant on the first three occasions. 39. A further hearing was held on 16 April 2009, at which the trial bench commissioned a psychiatric expert report concerning the applicant’s mental condition at the moment of the commission of the offences. 40. In the course of his examination by a psychiatrist the applicant explained that he had had serious financial difficulties and that he had needed money urgently. He also stated that he had never before broken the law and had never committed an offence. In summer 2008 an undercover police agent had started contacting him, asking him whether he could supply counterfeit euros. The applicant believed that one of the people in Croatia who owed him money must have given his phone number to the police. As the agent had been very persistent in his calls (he had called him at least fifty times), the applicant had agreed to his request. The applicant had not believed that he was doing anything bad by simply delivering counterfeit money. He explained that he would have never agreed to do it had he not been pressurised by the undercover agent. 41. In his report dated 21 April 2009 the expert witness found that the applicant had had full mental capacity at the time of commission of the offences. 42. On 13 May 2009 a further hearing was held before the Pazin Municipal Court at which the expert witness responded to questions concerning his report. 43. At the same hearing the applicant was questioned but decided to remain silent and not to give any evidence. Following the applicant’s questioning, the trial bench concluded the trial proceedings and heard the parties’ closing arguments. The applicant contended that he had been incited by the police to commit the offences at issue. He argued that it had been the undercover agents who had contacted him first and that their evidence concerning the circumstances of their various contacts had been both incomplete and contradictory. He pointed out that there no audio recordings of his meetings with the undercover agents and it was unclear why had they not arrested him before 22 November 2008 if he had committed an offence on the first three occasions, as suggested in the indictment. 44. On 13 May 2009 the Pazin Municipal Court found the applicant guilty as charged and sentenced him to five years and six months’ imprisonment. It also confiscated HRK 300 (approximately EUR 40) and EUR 8,500 from the applicant and ordered his expulsion from Croatia. The Pazin Municipal Court held that the four occasions on which the applicant had sold counterfeit currency to the undercover agents should be classified as a repeated offence of uttering counterfeit currency under Article 274 § 1 of the Criminal Code. When sentencing the applicant, the Pazin Municipal Court explained that the applicant’s persistence in uttering counterfeit currency on four occasions, as well the quantity of counterfeit banknotes uttered (81,400 counterfeit euros in total), constituted particularly aggravating factors. With regard to the applicant’s plea of entrapment, the Pazin Municipal Court merely noted that it had no reason to doubt the statements provided by the undercover agents. 45. The applicant challenged the first-instance judgment before the Pula County Court arguing, in particular, that the circumstances of his entrapment had not been properly examined. 46. On 20 October 2009 the Pula County Court quashed the firstinstance judgment and remitted the case for re-examination. It found that the first-instance judgment had been based solely on the undercover agents’ statements about their conversations with the applicant, which was contrary to Article 180 of the Code of Criminal Procedure. 47. In the resumed proceedings the Pazin Municipal Court excluded from the case file as unlawful evidence all the undercover agents’ statements about their conversations with the applicant. 48. At a hearing on 18 January 2010 the Pazin Municipal Court again questioned the undercover agents E.K. and A.B. 49. In his statement E.K. explained that he could not judge whether he had contacted the applicant more frequently than the applicant had contacted him. He was also unable to recall the details of his conversation with the applicant when they had first talked over the phone. E.K. also explained that a simulated purchase operation was sometimes carried out just once and sometimes on several occasions. In the case at issue, he had been instructed by his superiors to conduct several such simulated purchases. Moreover, it was for his superior and not him to determine the ultimate aim of the simulated purchase operation. In any case, the aim of such a police operation was to eradicate currency counterfeiting. E.K. was unable to recall who had initiated the meeting in Lupoglav in mid-October 2008 when he had introduced the applicant to the second undercover agent A.B. Nor could he say who had initiated the other meetings. With regard to his first meeting with the applicant, he could not say whether the applicant had had only one 100 euro counterfeit note in his possession or more than one. E.K. answered that it was “[the applicant’s] own business”. 50. In his statement A.B. explained that his meeting in Solin had taken place at the applicant’s initiative and that it was the applicant who had contacted him more frequently than vice versa. A.B. further stated that it was his superior who had the authority to decide whether the simulated purchase would be organised just once or on several occasions. 51. Following the questioning of the undercover agents, the defence asked that C.M. ‒ who was initially identified as the person to whom the applicant had allegedly first supplied the counterfeit euros (see paragraphs 79 above) ‒ be questioned at the trial. The trial bench of the Pazin Municipal Court dismissed the request by the defence as irrelevant and adjourned the hearing in order to examine the recordings of the applicant’s secret surveillance. 52. On 30 March and 27 April 2010 the Pazin Municipal Court examined the recordings of the applicant’s communications and meetings with the undercover agents. It found that there had been eight unsuccessful attempts on the part of the undercover agents to contact the applicant. 53. At a hearing on 27 April 2010 the Pazin Municipal Court heard the parties’ closing arguments. The applicant argued in particular that the police had abused their powers in not arresting him after the first illicit transfer of counterfeit euros and had instead incited him to commit further offences by arranging purchases of larger quantities of counterfeit euros. He also contended that there had never been a reasonable suspicion of his having committed an offence which could have justified the investigating judge’s decision to authorise the use of undercover investigative measures. 54. On the same day the Pazin Municipal Court found the applicant guilty as charged and sentenced him to five years and six months’ imprisonment. It also confiscated HRK 300 (approximately EUR 40) and EUR 8,500 from the applicant and ordered his expulsion from Croatia. When sentencing the applicant, the Pazin Municipal Court reiterated its previous findings (see paragraph 44 above). 55. With regard to the applicant’s plea of entrapment, the Pazin Municipal Court observed: “In the case at issue, examination of the audio recordings of the phone taps confirmed the circumstances surrounding the communication between the undercover agents and the accused, in particular the intensity of the telephone communications. Taking note of the recorded statements of the undercover agents during their communications [with the applicant], it was established that the purpose of the communications was [organising] a meeting with the accused in order to effectuate a simulated purchase. This court considers that it cannot be said that the undercover agents acted improperly in the sense that by their actions they allowed the accused to develop his criminal activity [or] in any manner incited him to commit an offence. Neither the questioning of the undercover agents nor any other [evidence adduced] suggests that the undercover agents incited the accused to commit an offence in the sense that they offered him some reward or brought him presents or such like. It is true [as was established during the proceedings] that, for instance, between 12 and 16 October 2008 the undercover agent tried to contact the accused eight times on his mobile phone, but this court considers that this was not prohibited nor did it incite the accused to commit criminal acts. Those were attempts to contact the accused in the period which was ‘covered’ by the [investigating judge’s order]. It should be also taken into account that in the period at issue there had already been communication between the accused and the undercover agent.” 56. The applicant challenged the first-instance judgment by lodging an appeal before the Pula County Court. He argued, in particular, that the orders for the use of special investigative measures had not been adequately reasoned, as required under the Code of Criminal Procedure. He also contended that there had been no reason to continue with the use of simulated purchases and the undercover agents’ activities after the first illicit transfer of counterfeit euros in August 2008. All further events had constituted entrapment intended to extend the scope of his criminal activity, which eventually resulted in a more severe sentence. The applicant claimed that such measures could have been justified by the necessity to arrest further individuals involved in the offence, but no activity in that respect had been undertaken in his case. 57. On 24 September 2010 the Pula County Court dismissed the applicant’s appeal and upheld the first-instance judgment. It held that the investigating judge’s orders for the use of special investigative measures had been properly reasoned as required under the Code of Criminal Procedure. With regard to the plea of entrapment, the Pula County Court observed: “... [The investigating judge] ordered that the [special investigative] measures be implemented between 21 July and 21 November 2008, namely over a period of four months. The investigating judge’s order ... of 18 November 2008 shows that the use of [special investigative] measures was extended for a month from 21 November to 21 December 2008. It is apparent from the order that, in response to an application by the State Attorney’s Office, the investigating judge extended the use of [special investigative] measures for appropriate reasons. It [also]probably cause to believe that the accused had uttered counterfeit euros, which suggested the commission of a serious criminal offence (currency counterfeiting). Taking into account the nature of such an offence and the fact that the use of special investigative measures was producing certain results, there were relevant reasons for extending the use of [special investigative] measures under Article 180 of the Code of Criminal Procedure. It cannot therefore be said that the conduct of the undercover agents broadened the extent of the criminal activity of the accused. It should be noted that it cannot be claimed that the use of special investigative measures under Article 180 § 1(4) and (5) of the Code of Criminal Procedure can be considered as an incitement to commit a criminal offence. The undercover agent E.K. contacted the accused only after the use of special investigative measures had been ordered and there is therefore no unlawfulness in his conduct. Furthermore, the fact that E.K. first contacted the accused without telling him the reason for the contact, as was established by the first-instance court from the statement of E.K., and the fact that the first meeting took place almost a month later (on 6 August 2008) ‒ when the undercover agent in Duga Resa bought one 100 euro counterfeit note from the accused for the amount of HRK 300 ‒ cannot be considered as an incitement but was a tactical action aimed at gaining the confidence of the accused and further uttering of counterfeit euros. The fact that the undercover agent succeeded in his task is selfevident, since the accused continued to sell him larger quantities of counterfeit euros for real euros until he was arrested.” 58. On 6 November 2010 the applicant filed a request for extraordinary review of a final judgment before the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the findings of the Pula County Court. He contended that the Pula County Court had failed to provide adequate reasoning for its findings concerning the incitement. Specifically, it had not thoroughly examined the circumstances of the applicant’s first contact with the undercover agent when the first instance of incitement had occurred. Furthermore, the Pula County Court had not taken into account the fact that the majority of the contacts with the applicant had been initiated by the undercover agents, and it had not analysed the substance of their discussions, even though they had been duly recorded, as a result of the applicant’s phone having been tapped. In this connection the applicant pointed out relevant parts of the transcript of the phone taps, in particular the part where the undercover agent stated: “Come on, you must definitely come. Don’t you know, ok, we are serious people ...”; or where the applicant stated “I will not bring [it] and that’s it”, after which the undercover agent started inciting him to a criminal act. The applicant also contended that the investigating judge’s orders for the use of special investigative measures had not been properly reasoned, as required under the Code of Criminal Procedure. 59. On 5 April 2011 the Supreme Court dismissed the applicant’s request for extraordinary review of a final judgment, endorsing the reasoning of the lower courts concerning the applicant’s plea of incitement. It found that there was nothing in the conduct of the undercover agents suggesting incitement. It also considered that there had been sufficient basis for the use of secret surveillance and that the orders of the investigating judge had been issued in accordance with the relevant provisions of the Code of Criminal Procedure. 60. On 24 June 2011 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating the arguments he had presented before the lower courts. He pointed out in particular that the use of special investigative measures had been authorised contrary to the relevant domestic law as the investigating judge’s orders had not been properly reasoned. In his view, this had infringed his right to respect for his private life and the confidentiality of his correspondence guaranteed under Articles 35 and 36 of the Constitution. The applicant also contended that he had been incited to commit an offence by the undercover agents and that the lower courts had not properly examined his plea of entrapment. 61. On 8 December 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the decision of the Supreme Court concerned neither a determination of his rights and obligations nor a criminal charge against him. 62. The decision of the Constitutional Court was served on the applicant’s representative on 5 January 2012.