CEDH · CASELAW;CLIN;ENG — 23 novembre 2017

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Croatia - 47074/12 Judgment 23.11.2017 [Section I] Article 6 Criminal proceedings Article 6-1 Fair hearing Conviction for currency counterfeiting following an operation by undercover police agents: violation Facts – The applicant had been convicted of currency counterfeiting in connection with four occasions on which he had sold counterfeit euros to undercover police agents. He challenged the first-instance judgment arguing, in particular, that the circumstances of his entrapment had not been properly examined. His appeals were dismissed. Before the European Court the applicant complained of, inter alia , entrapment and the use of evidence thereby obtained in the criminal proceedings against him. Law – Article 6 § 1: Recourse to an operational technique involving the arrangement of multiple illicit transactions with a suspect by the State authorities was a recognised and permissible means of investigating a crime when the criminal activity was not a one-off, isolated criminal incident but a continuing illegal enterprise. In practice such an operational technique might be aimed at gaining the trust of an individual with the aim of establishing the scope of his or her criminal activity or working up to a larger source of criminal enterprise, namely to disclose a larger crime circle. However, in keeping with the general prohibition of entrapment, the actions of undercover agents had to seek to investigate on-going criminal activity in an essentially passive manner and not exert an influence such as to incite the commission of a greater offence than the one the individual had already been planning to commit without such incitement. It followed that in cases concerning recourse to such an operational technique, any extension of the investigation had to be based on valid reasons, such as the need to ensure sufficient evidence to obtain a conviction, to obtain a greater understanding of the nature and scope of the suspect’s criminal activity, or to uncover a larger criminal circle. Absent such reasons, the State authorities might be found to be engaging in activities which had improperly enlarged the scope or scale of the crime and might unfairly subject the defendant to increased penalties either within the prescribed range of penalties or for an aggravated offence. Although normally the issues concerning appropriate sentencing fell outside the scope of the Convention, as a matter of fairness, the sentence imposed should reflect the offence which the defendant had actually been planning to commit. In these situations although it would not be unfair to convict the person, it would be unfair for him or her to be punished for that part of the criminal activity which was the result of improper conduct on the part of the State authorities. It was undisputed between the parties that the applicant had been involved in four encounters during which he had succeeded in uttering a significant quantity of counterfeit euros by selling them to the undercover police agents. The first illicit transaction had been the result of the applicant’s own deliberate conduct and there was nothing suggesting that he would not have uttered the counterfeit currency on that occasion had an “ordinary” customer approached him instead of the police. However, there was no conclusive evidence as to who had taken the initiative in arranging the further meetings between the applicant and the undercover agents. There was no indication that, during the period concerned, the applicant was selling counterfeit currency to anybody other than the undercover agents. During the domestic proceedings, the undercover agents had been unable to explain why the applicant had not been arrested after the first illicit transfer of euros or the reasons for the decision to engage in multiple illicit transactions with him in the first place. It was therefore unclear under what form of practical guidance, if any, they were acting. There was no indication that any further activities had been undertaken by the authorities to secure the evidence that would have been necessary to prosecute an illegal business enterprise engaged in counterfeiting currency, and which might have warranted recourse to an operational technique involving the arrangement of multiple illicit transactions with the applicant. Since it was impossible to establish with a sufficient degree of certainty whether or not the applicant had been the victim of entrapment contrary to Article   6 it was essential to examine the procedure whereby the plea of entrapment had been assessed in his case, to ensure that the rights of the defence had been adequately protected. The applicant had raised an arguable plea of entrapment. The competent criminal courts should have investigated why the police had decided to launch the operation, what evidentiary material they had had in their possession, and the manner in which they had interacted with the applicant. That was particularly important in view of the lack of proper scrutiny by the investigating judge when authorising the undercover operation in question and the inconclusive statements of the undercover agents concerning the decision-making process as regards the conduct of the undercover operation. When scrutinising the conduct of the undercover agents, the domestic courts had mostly limited their inquiry to ascertaining whether the undercover agents had been acting on the basis of an order from an investigating judge. The Supreme Court had reiterated and endorsed the reasoning of the lower courts and had failed to thoroughly analyse and to provide the relevant reasoning for accepting or refusing the applicant’s contention that he had been prompted to engage in one of the subsequent illicit transfers. In the light of the above considerations, the domestic courts had failed to comply with their obligation to examine effectively the applicant’s plea of entrapment, as required under the procedural test of incitement under Article 6 §   1. Accordingly, the decision-making procedure leading to the applicant’s more serious sentencing for multiple uttering of counterfeit currency had failed to comply with the requirements of fairness. That did not imply that he had been wrongly convicted for uttering counterfeit currency but rather that the domestic courts had failed to establish whether, by his participation in the subsequent illicit transactions, the scope of his criminal activity had been extended as a result of improper conduct on the part of the authorities. Conclusion : violation (unanimously). The Court also found a violation of Article   8 as regards covert surveillance of the applicant. Article 41: EUR 1,500 in respect of non-pecuniary damage. (See also Matanović v. Croatia , 2742/12, 4   April 2017, Information Note 206 ; and Milinienė v.   Lithuania , 74355/01, 24   June 2008, Information Note   109 )     © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes