(Application no. 13109/04)
1 March 2011
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 Lalas v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
David Thór Björgvinsson,
Işıl Karakaş, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 8 February 2011,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
14. Defence counsel, in his final submissions to the trial court, contended that the undercover police officer V. had acted unlawfully and that the applicant had been incited to commit the offence. Consequently, the officer's evidence could not be relied on. Furthermore, counsel contended that the applicant had never been involved in drug dealing before.
“[T]he Criminal Conduct Simulation Model is used to collect evidence about the criminal activities of a particular person. That is what happened in the present case. Having obtained information that M. ... was selling psychotropic substances, the police officer - whose identity was concealed - expressed his wish to get some drugs. The subsequent activities of [both the applicant and his accomplice], i.e. the selling of a large quantity of drugs, were in part determined by the conduct of the police officer.”
“The court finds the [applicant's] arguments that he was drawn into committing the crime by M. unfounded. The evidence shows that M., as the person who carried out the crime, had already been detected when drug-related crimes were being investigated. The case file shows that both M. and Lalas actively carried out the crime. ... [I]n establishing the persons involved in drug-dealing, [the officers] did not overstep the limits of the Criminal Conduct Simulation Model. ... [T]he police have only uncovered the ring of persons committing crimes and brought to an end their criminal activities. The officers joined in the crime that was already taking place ... Having established the group of accomplices, the officers brought to an end their criminal activities, but did not influence or incite them.”
“In the present case, the Criminal Conduct Simulation Model ... was applied in order to protect society and the State from the challenges posed by the consumption and illegal circulation of drugs and psychotropic substances. The model was sanctioned by the Prosecutor General, in view of the possession of information about M. selling narcotic substances. Such data ... is a lawful ground for the use of the model.
By entering into contact with M. and offering to buy psychotropic substances from him ..., V. only joined in the criminal activity of M. and uncovered his accomplice. Such actions cannot be considered as entrapment (nusikaltimo provokavimas): it appears from the case file that M. and Lalas were not subject to any pressure ... [The applicants'] allegation that the police undercover agent drew into the crime (paskatino) persons who had never offended before to commit a serious crime, is unsubstantiated. On the contrary, the use of [the model] helped to stop the criminal activity. ...
The information which is obtained by use of the [model] constitutes a State secret ... and is accessible only to persons who have special authorisation. Neither [the applicant] nor his lawyer has such authorisation. Consequently, the fact that secret operative information was not disclosed to them cannot be regarded as a violation of the applicant's defence rights. It should be noted that the first instance court acquainted itself with the secret operative information and its sources, and properly evaluated the lawfulness of the model.”
As regards the qualification of the offence the Supreme Court held that “the activities [of Malininas and Lalas] which constituted the objective part of the norm of § 2 of Article 260 of the Criminal Code were controlled by the officials and partially realised under their influence.” The applicant's conviction was again re-classified as an attempt to sell drugs in large quantities (Articles 22 § 1 and 260 § 2 of the new Criminal Code), and the sentence of eight years' imprisonment was maintained.
II. RELEVANT DOMESTIC LAW AND PRACTICE, AND RELEVANT INTERNATIONAL LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. The parties' submissions
1. The Government
2. The applicant
“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 Teixeira de Castro v. Portugal, [judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV], ... p. 1463, § 38, and, by way of contrast, Eurofinacom v. France (dec.), no. 58753/00, ECHR 2004 VII).”
II. 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.”
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 1 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Concurring opinion of Judges Malinverni and Sajó;
(b) Dissenting opinion of Judge Cabral Barreto;
(c) Dissenting opinion of Judge David Thór Björgvinsson.
CONCURRING OPINION OF JUDGES MALINVERNI
Dissenting opinion of Judge Cabral Barreto
I regret that I cannot follow the approach adopted by the majority of the Chamber in the present case for the same reasons which I expressed in my dissenting opinion in the case of Malininas v. Lithuania, no. 10071/04, 1 July 2008.
DISSENTING OPINION OF JUDGE DAVID THÓR BJÖRGVINSSON
I disagree with the majority that there has been a violation of Article 6 § 1 of the Convention in this case.
As explained above in the judgment, this case is closely linked to the case of Malininas v. Lithuania (judgment of 1 October 2008), where the Court also found a violation of Article 6 § 1 of the Convention.
In paragraph 45 above the majority accepts that the Criminal Conduct Simulation Model (the Model) had been authorised only in respect of Mr Malininas, the applicant in the above-mentioned case, and not at any time did the police agents have direct contact with the applicant in this case. In spite of this, the majority comes to the conclusion that, in the case of the applicant, the police agents did not “merely "join" an on-going offence; in the circumstances of the present case, they instigated it also in respect of the applicant.”
My grounds for finding no violation is this case are the following:
Firstly, I believe that in the earlier case it had been sufficiently substantiated that Mr Malininas was predisposed to commit a drug offence before the Model was implemented. I would point out that this Court has accepted that the very circumstances in a particular case may be indicative of a pre-existing criminal activity or intent and thus justify undercover operations of the kind involved in the case. Among such factors is the demonstrated familiarity of a person with the drug market; such as knowledge of prices of different drugs, as well as an ability to obtain drugs at short notice (See Bannikova v. Russia, no. 18757/06, § 42, 4 November 2010, and Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004-IV). A strong indication of Mr Malininas' primary involvement in drug dealings was his apparent familiarity with the drug market, when approached by the police agent, as he was already well informed about prices of psychotropic drugs, as well as about possible suppliers of such drugs, in particular Mr Lalas, the applicant in the case at hand. For this reason I believe the undercover operations against Mr Malininas were justified1. Thus it cannot be said that the police by way of unjustified undercover operations directed at Malininas instigated an offence in respect of the applicant in this case.
Secondly, as regards the applicant himself, and using the same criteria as above, it is striking that he was ready and able to fulfil Mr Malininas requests for psychotropic drugs worth of 3000 US dollars at relatively short notice. It is hardly conceivable that someone, to whom the world of drug trade was unknown before, would be able push through a deal of this magnitude so quickly. This is enough to show that the applicant was clearly predisposed to commit a drug offence before the Model was implemented against Mr Malininas.
Thirdly, as stated earlier the applicant in this case was never mentioned in the authorisation for the Model (see paragraphs 19 and 45 above). It is furthermore not disputed that the undercover police agents never at any time contacted the applicant directly, but they only had contact with Mr Malininas. Under these circumstances it is of less relevance whether the applicant himself was predisposed to commit drug offences before the police officers approached Mr Malininas. The stark reality is that the applicant, without any direct incitement or pressure from the police agent, agreed to supply Mr Malininas, who was just another private individual, with large quantities of illegal drugs.
For these reasons I come to the conclusion that there has been no violation Article 6 § 1 in this case.
1 See Salduz v. Turkey, [GC] 36391/02 of 27 November 2008, Joint Concurring Opinion of Judges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska; see also Cudak v.Lithuania, [GC] 15869/02 of 23 March 2010, Concurring Opinion of Judge Malinverni, joined by Judges Casadevall, Cabral Barreto, Zagrebelsky and Popović.
1 See also Judge Cabral Barreto’s dissenting opinion in the case of Malininas v Lihuania, cited above.