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Case Law 74420/01 (05/02/2008)

Type: Grand Chamber judgment

Authority: European Authorities: European Court of human rights

Date: 02/05/2008

Subject: The Court held unanimously that there had been a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights. The applicant complained that he was incited to commit a criminal offence by the State authorities and that, as a result, he was unfairly convicted of bribery. He further alleged that the principle of equality of arms and the rights of the defence had been infringed in that, during the trial, neither the courts nor the parties had had the opportunity to examine VS. He relied on Article 6. Article 6 § 1 The Court considered that the national authorities could not be exempted from their responsibility for the actions of police officers by simply arguing that, although carrying out police duties, the officers were acting “in a private capacity”. It was particularly important that the authorities should have assumed responsibility, as the initial phase of the operation took place in the absence of any legal framework or judicial authorisation. Furthermore, by authorising VS and AZ to simulate acts of bribery and by exempting AZ from all criminal responsibility, the authorities legitimised the preliminary phase ex post facto and made use of its results. Moreover, no satisfactory explanation had been provided as to what reasons or personal motives could have led AZ to approach the applicant on his own initiative without bringing the matter to the attention of his superiors, or why he was not prosecuted for his acts during that preliminary phase. On that point, the Government simply referred to the fact that all the relevant documents had been destroyed. The actions complained of by the applicant were therefore attributable to the authorities. The actions of VS and AZ also went beyond the mere passive investigation of existing criminal activity: there was no evidence that the applicant had committed any offences beforehand, in particular corruption-related offences; all the meetings between the applicant and AZ took place on the latter's initiative; and, the applicant seemed to have been subjected to blatant prompting on the part of VS and AZ to perform criminal acts, although there was no objective evidence to suggest that he had been intending to engage in such activity. The Court observed that, throughout the proceedings, the applicant maintained that he had been incited to commit the offence. Accordingly, the domestic authorities and courts should at the very least have undertaken a thorough examination of whether the prosecuting authorities had incited the commission of a criminal act. To that end, they should have established in particular the reasons why the operation had been mounted, the extent of the police's involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected. That was especially important having regard to the fact that VS was never called as a witness in the case since he could not be traced. The applicant should have had the opportunity to state his case on each of those points. However, the domestic authorities denied that there had been any police incitement and took no steps at judicial level to carry out a serious examination of the applicant's allegations. More specifically, they did not make any attempt to clarify the role played by the protagonists in the applicant’s case, despite the fact that the applicant's conviction was based on the evidence obtained as a result of the police incitement of which he complained. The Court noted the Supreme Court’s finding that, once the applicant’s guilt had been established, the question whether there had been any outside influence on his intention to commit the offence became irrelevant. However, a confession to an offence committed as a result of incitement could not eradicate either the incitement or its effects. The Court concluded that the actions of AZ and VS had the effect of inciting the applicant to commit the offence of which he was convicted and that there was no indication that the offence would have been committed without their intervention. There had therefore been a violation of Article 6 § 1. Article 6 § 3 (d) The Court did not consider it necessary to carry out a separate examination under Article 6 § 3 (d) of the applicant's complaint that the proceedings were unfair.

Parties: Ramanauskas c/ Lituania

Classification: Justice - Art. 47 Fair trial, public hearing