(Applications nos. 23782/06 and 46629/06)
29 September 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Constantin and Stoian v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,
Having deliberated in private on 8 September 2009
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The events of 18 November 2003
B. Applicants' statements during the criminal investigations
C. Proceedings before the Bucharest County Court
D. Appeal proceedings
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.”
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.
E. Other proceedings
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
“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.”
“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.”
I. JOINDER OF THE APPLICATIONS
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
1. The parties' submissions
(a) The Government
They also pointed out that the second applicant had not been informed about the investigations because he had absconded from 18 November 2003 until May 2004.
unlike in the case of Teixeira de Castro v. Portugal (9 June
1998, Reports of Judgments and Decisions 1998 IV), the
courts in the case at hand had not based their decision solely on the
undercover agents' testimonies. The applicants had been heard by the
first instance court (the Government referred, a contrario,
to Ilişescu and Chiforec v. Romania, no. 77364/01,
1 December 2005) and had had the possibility of
cross-examining the undercover agent (they referred, a contrario, to Dănilă v. Romania, no. 53897/00, 8 March 2007).
In their view, it was enough for the first-instance court to examine the evidence directly.
(b) The applicants
2. The Court's assessment
There has accordingly been a violation of Article 6 § 1 of the Convention on this account.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
The second applicant claimed, in his initial application to the Court, 252,000 euros (EUR) in respect of pecuniary damage and EUR 300,000 for non-pecuniary damage; he did not answer the Court's request, on 17 June 2008, to formulate his claims according to Rule 60 of the Rules of Court. After the time-limits set for submission expired and the applicant was warned that his application might be struck out, he informed the Court that he maintained his previous claims.
In their view the second applicant's claims should be dismissed as he had failed to present them in line with Article 60 of the Rules of Court. They referred to Niţescu v. Romania (no. 26763/03, § 48, 21 April 2009). In addition, they argued that the claims for the alleged pecuniary damage were excessive and unjustified and that there was no causal link to any acts of the authorities.
They also considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged by the applicants.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
(ten thousand euros), plus any tax that may be chargeable, in respect of non pecuniary damage, to be converted into the respondent State's national currency, at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 29 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President