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Cite as: [2010] ECHR 80
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
7157/05
by Aleksey VAYSER
against Estonia
The European Court of Human Rights (Fifth Section), sitting on 5 January 2010 as a Chamber composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having regard to the above application lodged on 10 February 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Aleksey Vayser, is an Estonian national who was born in 1975 and lives in Tallinn. He was represented before the Court by Mr L. Olovjanishnikov, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Factual circumstances related to the simulation of the offence
The applicant was a manager of B.E.I. Survey OÜ, a private limited company authorised to monitor the conformity of liquid fuels to applicable norms and to issue the pertinent certificates.
On 30 May 2003 Zh., who was interested in entering the liquid fuels business and explored the prices for their storage and certification, visited B.E.I. Survey OÜ and met the applicant. The latter gave Zh. a price list for the analyses performed by the company. According to Zh., the applicant told him that it was possible to issue certificates of conformity in respect of fuel that did not actually conform to the applicable quality standard if the fuel was to be sold in the countryside, in smaller places where there was no control. According to Zh., the applicant said that there would be “possibilities” if they could find a common language and that in such a case fuel samples could be brought by Zh. himself, otherwise a representative of the laboratory had to take the samples from the fuel tanks. The applicant told him that if he was not present he would be replaced by D., an expert in the company. Zh. agreed with the applicant that he would come the following week with the samples.
On 2 June 2003 Zh. reported to the police that conformity certificates for fuel not actually conforming to the applicable standard could be obtained from B.E.I. Survey OÜ. On the same day a criminal investigation was initiated into the suspected taking of bribes by the applicant and D. Zh. was interviewed as a witness and he agreed to co-operate with the police to simulate the offence of bribery.
On 3 June 2003 the chairperson of the Tallinn Administrative Court (halduskohus) authorised interception and undercover audio and video recording of conversations between Zh., the applicant and D., as well as simulation of the offence of bribery by Zh. in order to entrap the applicant. The authorisation was for a 15-day period and remained valid until 2 July 2003. It could be appealed against within 30 days.
On the same day the police officers took samples from fuel brought by Zh. According to him it was a mixture of fuels conforming and not conforming to the standards. A 1.5-litre plastic bottle with fuel was given to Zh. for the simulation of the offence.
In the afternoon of 4 June 2003 Zh. went to the applicant’s office and gave him the fuel sample for analysis, saying that he had 20 cubic metres of fuel on a truck and that customers who wished to buy it wanted to see a conformity certificate for it. Zh. and the applicant discussed the fee for the analyses; the applicant named different sums around 6,000 Estonian kroons (EEK; approximately 380 euros (EUR)), apparently on the basis of the price list. The applicant asked if Zh. wanted the true information about the quality indicators; Zh. replied in the affirmative adding that if anything did not match the applicant could give him a call. The applicant agreed. Zh. gave him EEK 3,000 (EUR 190) in cash without receiving an invoice.
The analyses in respect of the fuel were actually carried out by a laboratory of a different company, with the applicant’s company serving as intermediary.
In the evening of 4 June 2003 the applicant called Zh. and said that the results of the tests were not good and that several indicators were not in compliance with the applicable standard. He asked Zh. what he would propose and whether they would proceed. Zh. expressed certain doubts but then agreed with the applicant that the test results were not of substantial importance and added that the fuel would in any event be used in the countryside in tractors. They agreed to meet the next day.
On 5 June 2003 Zh. went to the applicant’s office. The applicant said that the analyses had been completed and that the results were bad. They agreed that there would be no problem if the fuel was to be used in tractors. The applicant gave Zh. a certificate indicating that the fuel conformed to the standard. He wrote his own and D.’s signatures on it. Zh. paid the applicant EEK 4,000 and received an invoice in the amount of EEK 3,307.85 (EUR 210).
On the same day the police searched the applicant’s office and seized the cash, the invoice, the certificate and some other documents. The applicant was interviewed as a suspect. He was represented by a lawyer throughout the criminal proceedings.
2. Judicial proceedings
On 20 June 2003 the applicant concluded a plea-bargain agreement with the prosecution.
On 30 September 2003 the Tallinn City Court (linnakohus) examined the case. The applicant pleaded guilty to the charge of falsification of an official document but not that of taking a bribe. He alleged that the money he had received had been a fee received by his company. As the applicant did not plead guilty to all the charges, the court discontinued the summary proceedings and remitted the case to the prosecution with a view to proceeding on general grounds.
On 30 October 2003 the bill of indictment was drawn up. The applicant was charged with taking a bribe and falsification of an official document. According to the charges, he had taken a bribe in the sum of EEK 7,000 (EUR 450) from Zh. in return for issuing a certificate of conformity in respect of fuel that did not actually conform to the applicable quality standard. He had also forged the signature of D., an expert at B.E.I. Survey OÜ, on the certificate.
On 29 April 2004 the Tallinn City Court convicted the applicant as charged. He was sentenced to two years’ imprisonment, six months of which were to be served immediately and the remainder suspended.
According to the judgment, the applicant pleaded guilty to the falsification charge. He denied the charge of taking a bribe, arguing that Zh. had paid according to the price list and that the price for the analyses would have been EEK 7,000 regardless of their results. He had not been able to issue the receipt because the police had come in before. According to the applicant, he had stated higher quality indicators on the certificate because Zh. had asked him to do so. Zh. had explained that the fuel would be used for agricultural purposes, and according to the applicant such fuel could indeed be used, in compliance with the GOST (государственный стандарт; Soviet, later Commonwealth of Independent States, standard) norms, in tractors of Russian origin.
According to Zh., who gave evidence in court, the security police had provided him with a bottle of fuel which did not conform to the applicable quality standard and the bribe money. He had agreed with the applicant that certain indicators would be “improved” on the certificate.
The City Court also heard submissions from two witnesses from companies which had actually carried out the fuel analyses at the request of the applicant’s company, and two employees of the applicant’s company – the accountant and D., who stated that he had not signed the certificate in question. It also examined video and audio recordings of the meetings and conversations between Zh. and the applicant and various written evidence, including the transcripts of the recordings.
The City Court established that the applicant had falsified the fuel test results in respect of three indicators, whereas in the case of nine indicators no analyses had been made and random entries to match the applicable norms had been written on the certificate. Furthermore, the certificate had been falsified in that it indicated that D. had taken the sample from a certain vehicle – whilst in fact it had been Zh. who had brought a bottle containing the fuel – and the applicant had forged D.’s signature.
The court considered that the applicant’s explanations concerning the price of the analyses and of the certificate, as well as the sums on the invoice, were inconsistent. It examined his submissions at various stages of the proceedings, price lists and accounting documents and concluded that the whole amount of EEK 7,000 had to be considered as a bribe and not a payment for a service rendered to Zh. The court ordered the transfer back to the state budget of the sum of EEK 7,000 used by the authorities in the covert operation. In determining the applicant’s sentence, the City Court noted that he had discredited the officials and institutions authorised to certify the quality of liquid fuels.
The applicant appealed against the City Court’s judgment in so far as his conviction of taking a bribe was concerned. He did not challenge his conviction on the falsification charge. In respect of bribery, he argued that the City Court had been wrong to consider the money in question as a bribe. He also noted, in the context of the sentence given by the first-instance court, that the police had simulated the offence, that is, deliberately created the circumstances constituting an offence and had sought such a result. Therefore, the question arose as to who had been discredited. He admitted that simulating an offence was in principle authorised by law but insisted that in this case the police incitement had to be taken into account as a mitigating circumstance, because otherwise the offence might not have been committed.
On 26 May 2004 the Tallinn Court of Appeal (ringkonnakohus) dismissed the applicant’s appeal and upheld the City Court’s judgment. It held, inter alia, that the fact that the bribe had been offered in the course of simulation of an offence – a measure authorised under the law – had no effect on the question of the applicant’s guilt or his punishment. The court found that neither the police nor the undercover agent could be considered the instigators of the offence.
The applicant appealed against the Court of Appeal’s judgment, arguing that under the Surveillance Act (Jälitustegevuse seadus) the surveillance procedure could be started if there was information – and if this information was insufficient to initiate a pre-trial criminal investigation – concerning a criminal offence in the first degree being prepared or committed or having been committed, or concerning a criminal offence in the second degree having been committed intentionally, if the latter carried a sentence of at least three years’ imprisonment. Thus, there had to be sufficient information that an offence was being planned or committed. However, in the present case no offence had been being planned or committed and the criminal offence had been simulated without the existence of any of the information required by the Surveillance Act, such information having only been created by way of the simulation. Accordingly, there had been an incitement and there was good reason to believe that without it no offence would have been committed. He also reiterated that the simulation of the offence should have been considered as a mitigating circumstance.
On 18 August 2004 the Supreme Court (Riigikohus) refused the applicant leave to appeal.
B. Relevant domestic law
Section 2 of the Surveillance Act (Jälitustegevuse seadus), as in force at the material time, provided that surveillance was unlawful unless carried out in cases and according to the procedure foreseen by that Act and in pursuance of the goals contemplated therein.
It further provided as follows:
Section 3 – Goal of surveillance
“(1) The goal of surveillance shall be to gather information and perform other actions authorised by this Act that are necessary for:
1) prevention of criminal offences being prepared or committed;
2) discovering criminal offences that have been committed, finding persons who have committed criminal offences, compensating for damage caused by criminal offences and clarifying other circumstances that have an important bearing on criminal proceedings;
...”
Section 9 – Reasons for commencement of surveillance procedure
“(1) The reasons for the commencement of the surveillance procedure are:
1) the need to establish truth in a criminal case;
...
3) information concerning a criminal offence in the first degree being prepared or committed or having been committed or concerning a criminal offence in the second degree having been committed intentionally if the latter carries a sentence of at least three years’ imprisonment, if this information is insufficient to initiate a pre-trial criminal investigation;
...”
Sections 12(2)(4) and 13 of the Act provided that the police could, with the authorisation of the Tallinn Administrative Court (halduskohus), simulate criminal acts in order to arrest a criminal offender or for the purpose of investigating a criminal offence.
The authorities authorised to carry out surveillance could include adults in temporary or permanent secret collaboration with their consent (section 14(1)).
Article 4 § 2 of the Penal Code (Karistusseadustik) provided that offences carrying a fine or a sentence of up to five years’ imprisonment were criminal offences in the second degree.
Section 294 § 1 of the Penal Code provided that the criminal offence of taking a bribe carried a sentence of one to five years’ imprisonment. Section 299 § 1 provided that the criminal offence of falsification of an official document carried a fine or a sentence of up to one year’s imprisonment.
COMPLAINTS
THE LAW
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. The parties’ submissions
The Government were of the opinion that the applicant had failed to exhaust domestic remedies. He had not raised questions concerning the legal basis of the simulation or argued that any pressure had been exerted by the police collaborator. In the appeal to the Court of Appeal the issue of simulation had been dealt with for the first time, and only as a mitigating factor in the context of the severity of the applicant’s punishment. In respect of the appeal to the Supreme Court, the Government contended that no new factual circumstances could be presented in an appeal to the Supreme Court and that the latter did not assess the evidence. In any event, the lawfulness of the simulation had not been contested and no reference had been made to the exceeding of limits in matters of simulation.
As to the substance, the Government were of the opinion that the applicant had been given a fair hearing. They pointed out that the criminal proceedings in respect of the applicant had been initiated on the basis of information the police had received from Zh., a private individual. Already at their first meeting – before Zh. had contacted the police – the applicant had suggested to Zh. the possibility of obtaining a certificate for non-conforming fuel if they “found a common language”. Only thereafter had Zh. reported it to the police, the criminal investigation been initiated and the simulation of the offence taken place. Furthermore, the simulation of the bribery had been lawful; it had had a legal basis and had been duly authorised by the Tallinn Administrative Court. The Administrative Court’s decision had not been appealed against within the applicable time-limit of 30 days. The decision had specified the persons who would be involved in simulating the offence, the extent of the activities that could be performed and a limited period for the extraordinary surveillance activities. The simulation of the offence had taken place under the constant supervision of the police and under prior authorisation by a court. Thus Zh. could not be considered an agent provocateur. Moreover, the Government pointed out that although Zh. had been examined in court as a witness and the applicant had had an opportunity to put questions to him, no substantial questions had been asked and no allegations as to the unlawfulness of the simulation or incitement by Zh. had been made by the defence. Lastly, the Government noted that the applicant’s conviction had not been based solely on the statements of Zh.
The applicant objected, pointing out that the fact that a police collaborator had been involved in the case had been well known to the courts, as the undercover audio and video recordings had been examined in the court. Moreover, in case of a substantial procedural violation an appellate court could quash a judgment and refer the case back to a first-instance court even if this had not been requested by the appellant. Furthermore, the issue of the groundlessness of the simulation had been raised in an appeal to the Supreme Court.
As to the substance, the applicant noted that Zh. had only received a price list from the applicant at their first meeting and had subsequently visited other companies to get information about their fees. Furthermore, the Court of Appeal had not ruled out that the applicant’s “intention to engage in bribery” could have arisen after he had received the results of the analyses, when the entire police operation had been nearing its end. The applicant considered that the simulation of the offence had been unfounded as at that time it had not been clear whether Zh. would become a client of the applicant’s company at all. It would seem that the police had already sent Zh. to the first meeting with the applicant in order to affect customer interest and, for the second meeting, had equipped him with the recording devices and instructed him to incite the applicant to commit any economic offence.
2. The Court’s assessment
The Court notes at the outset that the views of the parties differ as to whether the domestic remedies have been exhausted. It reiterates that the purpose of the requirement of exhaustion of domestic remedies (Article 35 § 1 of the Convention) is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 V, with further references). Moreover, the requirement of exhaustion of domestic remedies does not mean merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law; and, further, that any procedural means which might prevent a breach of the Convention should have been used (see Cardot v. France, 19 March 1991, § 34, Series A no. 200, with further references).
Turning to the present case, the Court notes that there is no dispute that the applicant appealed up to the Supreme Court, thus having had recourse to the available remedies. However, the Court observes that there is no indication that he raised the issue of incitement in the first-instance court. In his appeal the simulation of the offence was only mentioned as a mitigating circumstance in the context of the sentence; it was noted in that context that without simulation the offence might not have been committed. Thus, it can be well understood that the City Court and the Court of Appeal did not deal specifically with the question of incitement later invoked by the applicant. It was only in his appeal to the Supreme Court on points of law that the applicant argued that the simulation was unfounded in the light of the criteria set out in the Surveillance Act; he then added that without active incitement he would not have committed the offence. The Court doubts whether it can be said that the domestic remedies have been exhausted in the present case as the arguments advanced by the applicant in the domestic proceedings seem to have differed from those he made before the Court (compare Cardot, cited above, and Ahmet Sadık v. Greece, 15 November 1996, § 33, Reports of Judgments and Decisions 1996 V). However, the Court does not find it necessary to determine whether or not the domestic remedies were exhausted in the present case as the complaint has to be declared inadmissible, in any event, for the reasons given below.
The Court reiterates that the use of special investigative methods – in particular, undercover techniques – cannot in itself infringe the right to a fair trial. However, on account of the risk of police incitement entailed by such techniques, their use must be kept within clear limits (see Ramanauskas v. Lithuania [GC], no. 74420/01, § 51, ECHR 2008 ...). Furthermore, while the use of undercover agents may be tolerated provided that it is subject to clear restrictions and safeguards, the public interest cannot justify the use of evidence obtained as a result of police incitement, as to do so would expose the accused to the risk of being definitively deprived of a fair trial from the outset. Police incitement occurs where the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution (see Ramanauskas, cited above, §§ 54-55, with further references).
In the present case, the Court observes that the applicant as the manager of B.E.I. Survey OÜ was approached by Zh., a private individual, who was entering the fuel business and seeking possibilities for making fuel tests. There is nothing to indicate that during their first meeting he offered the applicant a bribe or enquired whether a falsified certificate could be obtained from the applicant. On the contrary, it was the applicant who had hinted at such an option, saying that there were “possibilities” if they found a “common language”. When Zh. informed the police thereof, this information was considered sufficient to open a criminal investigation. It was already in the context of the criminal investigation that the police sought authorisation for the simulation of the offence of bribery. The simulation was duly authorised by a competent court. Its duration, the persons to be involved, the offence to be simulated as well as the technical devices to be used were specified in the court order. The Court notes that the Administrative Court’s decision whereby the authorisation for simulation was given could be appealed against within 30 days, a possibility that the applicant did not make use of despite the fact that he must have become aware of the decision after he was declared a suspect in the criminal case, that is within the time-limit allowed for appeal.
Furthermore, the Court observes that the audio and video recordings of the simulation of the offence were examined at the first-instance court hearing and their transcripts were included in the criminal case-file. Therefore, the domestic courts had the possibility of directly assessing the role Zh. had played in the undercover operation and whether or not he had played an excessively active role amounting to incitement. In so far as the pertinent material has been available to the Court, it cannot conclude that Zh.’s role was overly active. Although the conversations between the applicant and Zh. comprised hints and implications, the Court observes that it was the applicant who asked – after the unsatisfactory test results had become known – what Zh. would propose and said that the numbers were not of decisive importance. Moreover, the Court emphasises that the audio and video recordings were played at the City Court’s hearing, giving the applicant the possibility of immediately pointing to any element of incitement. The Court further notes that the applicant was given the possibility of challenging Zh.’s statements as he was examined in open court. However, the applicant did not put forward any objections based on the alleged incitement and the domestic courts established no pressure or coercion on the part of Zh. The Court concludes that there is no appearance of a violation of the applicant’s right to a fair trial.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court observes that the complaint concerns cash that the applicant received from the police through the intermediary of Zh. in the context of the simulation of the offence. The domestic courts treated it as real evidence and ordered that the cash be given to its lawful possessor, that is, the money used for the simulation of the offence – that had been received from the State budget – was to be transferred to the State revenues. According to the Code of Criminal Procedure the courts were authorised to determine how to proceed with items of real evidence. The Court observes that in domestic terms the applicant never became an owner of the disputed money and therefore had no possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. In any event, even assuming that the money became his “possessions” in Convention terms, as he argued before the Court, the Court considers that the domestic court’s order to return the money was an exercise by the State of its right, in the second paragraph of Article 1 of Protocol No. 1, to “enforce such laws as it deems necessary ... to secure the payment of ... other contributions or penalties”. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President