FOU R T H SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40412/98 by V. against Finland

The European Court of H uman R ights (Fourth Section), sitting on 4 April 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta , judges , and M r s F. Elens-Pas sos , Deputy S ection R egistrar ,

H aving regard to the above application lodged with the European Commission of H uman R ights on 16 M arch 1998 ,

H aving regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

H aving regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

H aving deliberated, decides as follows:

T H E FACTS

The applicant is a Finnish national who was born in 1976 and lives in Helsinki . H e is represented before the Court by Mr Markku Fredman , a lawyer practising in H elsinki . The respondent Government are represented by their Agent, Mr Arto Kosonen, a director in the Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties and as they appear from the documents , may be summarised as follows.

The telephone calls from H.

H. was in detention on remand from 3 to 12 September 1996 . At the material time, the applicant did not know that H. was in police custody.

At 6.14 p.m. on Friday 6 September 1996 the applicant received a telephone call from H., who inquired whether he had cannabis in his possession. The applicant replied in the negative but maintained that in a couple of days he might know better after having made some inquiries.

At 8.04 a.m. on Sunday 8 September 1996 R. and K. entered Finland in a car. They drove through the customs of the harbour of Turku , South-Western Finland, and left for Helsinki . At 8.37 a.m. M. called the applicant and requested him to receive the narcotics because he was unable to do so himself. The applicant accepted.

At 1.48 p.m. and 8.11 p.m. H. called the applicant again. In the first call H. asked whether the applicant now had cannabis in his possession and the applicant answered that he could provide it later that day. In the second call it was agreed that H. would call the applicant again in order to arrange a meeting later the same evening. At 10.25 p.m. H. called the applicant and they agreed to meet in front of a restaurant twenty minutes after the call.

The applicant ’ s arrest and the pre-trial investigation

At 11.10 p.m. on Sunday 8 September 1996 the applicant was arrested in front of the aforementioned restaurant while in the possession of 986 grams of cannabis. He was taken into police custody and the cannabis was confiscated. In a search of the applicant ’ s apartment a further 13.2 grams of cannabis was found following the arrest.

When questioned by the police, the applicant stated that he had earlier that day met two women at a petrol station in accordance with the instruction of a narcotics dealer, M. Subsequently, the women had handed over their car to the applicant, who had gone to the car together with M. later in the evening. They had taken the car to another location where they had unloaded the narcotics, some ten kilograms of cannabis, by removing it from the frame of the car where it was hidden. They had gone to M. ’ s apartment where the applicant had received about one kilogram of the cannabis. Having left the apartment, the applicant had gone to the restaurant in front of which he had been arrested.

On 9 September 1996 the Espoo District Court ( käräjäoikeus , tingsrätten ) authorised the police to receive telephone metering information concerning the applicant ’ s telephone.

The police requested that the applicant be detained pending trial maintaining, inter alia , that he had been in possession of one kilogram of cannabis. On 11 September 1996 the District Court ordered his detention.

During the criminal investigation the applicant told the police about his other dealings with narcotics, namely the sale of cannabis purchased from M. in 1996, two incidents of exporting cash to the Netherlands in early 1996, the purchase of three mobile phone connections to be used by M., the introduction of a third party to M. to purchase another mobile phone connection and for the export of cash to the Netherlands and giving a key to his apartment to M.

The court proceedings against the applicant

The District Court

On 8 October 1996 criminal proceedings against the applicant and the other co-defendants were instituted before the Helsinki District Court. The applicant was charged with the following offences:

“I) aiding and abetting on two occasions the importing of narcotic substances in January and February 1996 [delivering cash to Holland on the order of M.];

II) promoting the importing of narcotic substances on three occasions in February-March and July 1996 [acquiring mobile phone connections for M.];

III) an aggravated narcotics offence on 8 September 1996 [possession and handling of 10 kilograms of cannabis with M. and taking about one kilogram for himself];

IV) two narcotics offences in July 1996 [sale of 200-300 and 100 grams of cannabis on the order of M.]; and

V) an aggravated narcotics offence in 1996 [sale of five kilograms of cannabis purchased from M.].”

The applicant admitted all the events on which the charges were based. The case was adjourned and he was ordered to remain in custody as the police investigation concerning some of the events had not yet come to an end.

At the hearing on 22 October 1996 the applicant testified regarding a charge brought against one of his co-defendants. The applicant ’ s counsel clarified that on 8 September 1996 his client had taken delivery of the car in order to get one kilogram of cannabis and had not known how much cannabis the car contained.

It cannot be concluded from the record of the hearing that any of the co-defendants testified as regards the charges brought against the applicant.

At the hearing on 5 November 1996 the prosecution presented alternative charges against the applicant in so far as he had been charged in count II with promoting the importing of narcotic substances. He was now alternatively charged with aiding and abetting a narcotics offence on three occasions. The prosecution also made a change to count V to the following effect. As the applicant had earlier been accused of possessing and selling some five kilograms of cannabis in 1996, the altered charge concerned twenty-one kilograms of cannabis of which the applicant had allegedly sold about twenty kilograms to three different persons during the period from 1 April 1996 until 8 September 1996 . Also two new charges against the applicant were added, namely:

“VI) aiding and abetting narcotics offences in the spring of 1996 [giving M. keys to his apartment knowing that it was going to be used for the sale of narcotics]; and

VII) aiding and abetting an aggravated narcotics offence in May 1996 [introducing a person to M. in order to have him deliver cash to Holland].”

At the hearing on 19 November 1996 the applicant ’ s counsel pointed out as newly acquired information that H., who had ordered one kilogram of cannabis from his client on 8 September 1996 , had been in police custody at the time and had been released as a reward for his favours to the police. Therefore, counsel argued that no offence had been committed as the events had taken place under police control. The applicant ’ s arrest had not come about by accident. The police had set a trap for him by having the agent provocateur order cannabis from the applicant, who would not have committed the offence had he not been explicitly asked to do so. Therefore he could not be punished for the offence in count III. Counsel went on to say that he had requested that the police produce the telephone metering information as regards calls from and to the applicant ’ s mobile phone but this had not yet been granted.

The applicant gave oral evidence to the following effect. H. had ordered a kilogram of cannabis on Wednesday or Thursday, whereupon the applicant had contacted M., who the same day had confirmed that there would be a shipment that weekend. When H. called again on Saturday, the applicant had told him that the deal might go through on Sunday or Monday. On Sunday they had agreed to meet in the evening.

On 25 November 1996 the police applied to the Espoo District Court for permission not to inform the applicant that his mobile phone had been under surveillance. The same day the court granted permission, relying on Chapter 5a, section 11(2) of the Coercive Measures Act. The next day the police informed the applicant of the decision, declining to divulge the requested information. The same day the applicant requested the police to issue a formal decision which could be appealed. On 29 November 1996 the police issued a decision in which it was maintained, inter alia , that the information was not public even to a party to criminal proceedings. On the same day the applicant requested the District Court to order the police officer in charge of the investigations, Superintendent J.M., to produce the telephone metering information at the next hearing.

On 3 December 1996 the District Court held its final hearing. As the criminal investigations had been continuing throughout, at this stage there were already twelve people accused of various narcotics offences.

The applicant ’ s counsel submitted that on 2 December 1996 he had tried to summon Superintendent J.M. to appear before the court, without success. He also informed the court about his aforementioned efforts to obtain the telephone metering information. He renewed his request that the court summon J.M. and order the disclosure of the telephone metering information.

The prosecutor submitted that the allegation about the phone calls made by H. while in police custody appeared to be true. He produced a fax from the police (a memorandum dated 26 November 1996 ) in which it was maintained that in view of the date of H. ’ s arrest it was impossible that the police could have incited the applicant and M. to smuggle narcotics, as the preparation of the narcotics smuggling had at that time already commenced. The prosecution also produced a more recent fax from the police dated 2 December 1996 in which the police gave some information regarding the communications and reiterated that the detailed telephone metering information was classified. The police nevertheless maintained that there had been one call on 6 September 1996 and three calls on 8 September 1996 from the police mobile phone to the applicant.

According to the record of the court hearing, the applicant submitted that the former of the above faxes gave the court sufficient information to rule on the matter of incitement. He contended that the information showed that the only reason for his actions regarding count III was the phone call from H. The public prosecutor submitted that he did not rule out this possibility. He also took the view that the phone calls should be taken into account as far as the applicant was concerned. The prosecution concluded that the police involvement could be taken into account for the purposes of determining the severity of the applicant ’ s sentence but could not alter the fact that the offence was punishable. Counsel pointed out that the prosecution did not dispute the agent provocateur claim. He withdrew his request to examine Superintendent J.M., who was likely to rely on his right not to testify in any event. He also withdrew the request that the court order the disclosure of the telephone metering information. At the hearing K. and the applicant gave oral evidence.

On 3 December 1996 the applicant was convicted on all counts and sentenced to three years and six months ’ imprisonment.

The facts on the basis of which the applicant was convicted as referred to above on count III included the fact that on 8 September 1996 he had been in possession of at least ten kilograms of cannabis having taken delivery of a car in which two persons, R. and K., had imported the narcotics illegally, and having later removed the drugs from the car and weighed them together with M. The 986 grams of cannabis which had remained in the applicant ’ s possession had the same night been confiscated by the police. The judgment did not comment on the police involvement.

On 4 December 1996 the applicant reported J.M. and J.O., alleging, inter alia , incitement to commit an offence (see below).

On 26 December 1996 the applicant complained to the Uusimaa County Administrative Board ( lääninhallitus , länsstyrelsen ) arguing that the District Court ’ s decision of 25 November 1996 not to reveal to him that his telephone had been under surveillance did not mean that the information gathered during the surveillance should not be accessible to him after he had nevertheless learned about the measure while being interviewed by the police in September 1996.

The Court of Appeal

On 2 January 1997 the applicant appealed to the Helsinki Court of Appeal ( hovioikeus , hovrätten ), requesting an oral hearing as to count III (commission of an aggravated narcotics offence on 8 September 1996 ). He also requested that the police officer in charge of the criminal investigation, Superintendent J.M be ordered under Chapter 17, Article 12, of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegÃ¥ngsbalken ) to produce the telephone metering information concerning communications to and from the applicant ’ s mobile phone during the period from 3 to 8 September 1996 . In this respect he also relied on Edwards v. the United Kingdom (judgment of 16 December 1992 , Series A no. 247 ‑ B, § 36).

As to the request for an oral hearing, the applicant stated that following the District Court ’ s judgment he had received more exact information about the persons involved in the agent provocateur operation. T he National Bureau of Investigation ( keskusrikospoliisi , centralkriminalpolis en ) had proceeded with the investigation into the suspected offences . He further requested, inter alia , that the charge in count III be dismissed or at least that his sentence be mitigated. He maintained that no offence had been committed as he had been incited by the police to acquire narcotics. Had the police arrested him in the early afternoon of 8 September 1996 , which they could have done, he would probably only have been charged with an attempt to acquire one kilogram of cannabis instead of possessing ten kilograms.

The public prosecutor did not submit any written reply to the appeal.

On 20 February 1997 the applicant submitted a pre-trial investigation report of 3 February 1997 which concluded that J.M. and J.O. were suspected of abuse of public office, breach of official duty and incitement to commit an aggravated narcotics offence. He also produced a subsequent indictment by the County Prosecutor . Lastly, he renewed his request for disclosure of the telephone metering information .

On 26 February 1997 the County Administrative Board, finding that the applicant in his capacity as a party to the proceedings against him should have access to the telephone metering information, annulled the police ’ s decision regarding the non-disclosure and ordered the information to be submitted to the applicant ’ s counsel.

On 11 March 1997 the applicant renewed his request for disclosure of the information to the Court of Appeal, referring to the aforementioned decision of the County Administrative Board. At that time, he had still not received the requested information as the decision had not become final.

Meanwhile, on 10 March 1997 , the Court of Appeal rendered judgment, upholding the applicant ’ s conviction. It rejected the requests for a hearing and disclosure of the telephone metering information as ill-founded. It stated that it had admitted the applicant ’ s written submission of 20 February 1997 with annexes to the file despite the fact that it had arrived after the time-limit for the appeal had expired. The court confirmed the substance of the District Court ’ s judgment but amended some of the reasoning. It found it established that there had been one phone call to the applicant on 6 September 1996 and three calls on 8 September 1996 from a mobile phone owned by the police. Relying on the pre-trial statements by two of the applicant ’ s co-defendants, R. and K., the court found that “there [had been] an arrangement that the applicant receive the cannabis prior to the order made by H.” and thus found him guilty as charged. It did not specify whether it was making reference to the call of 6 September or to one of the three calls of 8 September 1996 . Nor did it specify the date of the applicant ’ s initial involvement with the narcotics. R. and K. ’ s statements did not touch upon the chronology of the events as regards the applicant ’ s involvement. As noted above, the charge against the applicant concerned events having taken place on 8 September 1996 .

The Supreme Court

On 5 May 1997 the applicant sought leave to appeal from the Supreme Court ( korkein oikeus , högsta domstolen ), requesting an oral hearing and maintaining that he would not have committed the offence in count III without police incitement. He emphasised that charges had been brought against the police officers. Further, the Court of Appeal had based his conviction in part on R. and K. ’ s statements, although the District Court had not done so. The statements had been given during the pre-trial investigation and not at the District Court hearing, when R. and K. had only maintained their statements as given to the police. The prosecution had not relied on them as evidence against the applicant. Had the applicant known that those statements, the contents of which he had had no knowledge of, would be used as evidence against him, he would have cross-examined R. and K. in the District Court. The Court of Appeal had not held an oral hearing and had assumed the functions of the prosecution, thereby violating the applicant ’ s right to examine the witnesses against him. The applicant considered that the Court of Appeal had breached Chapter 26, Article 11a of the Code of Judicial Procedure as it had not identified the special reasons justifying an examination beyond the arguments and facts adduced in the writ of appeal. The prosecution had not made any written submissions to the Court of Appeal.

The applicant further took the view that the Court of Appeal had reached its conclusion regarding the timing of H. ’ s phone call on the basis of the pre-trial investigation report in the proceedings against the police officers, and thus on material relating to another case. J.M. and J.O. had not given testimony in the applicant ’ s case.

On 18 June 1997 the applicant submitted the judgment of the District Court in which J.M. and J.O. had been convicted and fined. The incitement charge had however been dismissed.

On 20 August 1997 the applicant filed a written submission, maintaining that the only differences between his case and the case of Teixeira de Castro v. Portugal ( no. 25829/94, Commission ’ s report of 25 February 1997, Decisions and Reports) were that he had been deprived of information about the agent provocateur operation and an opportunity to examine the police officers responsible for it, and that the domestic courts had not given a sufficiently reasoned judgment regarding the incitement.

On 14 October 1997 the Supreme Court refused the applicant leave to appeal.

The criminal proceedings against the police officers

The pre-trial investigation

As mentioned above, on 4 December 1996 the applicant made a criminal complaint about the police officer in charge of the investigation, Superintendent J.M., and Senior Constable J.O., following which t he National Bureau of Investigation carried out a pre-trial investigation.

The applicant ’ s counsel was not allowed to be present when J.M. and J.O. were questioned by the police. His request that the police interview the prosecutor in the criminal proceedings against the applicant as to, inter alia , whether the police report in the applicant ’ s case had contained sufficient information was rejected. He also requested that M. be interviewed as to whether the applicant had participated in the smuggling of the narcotics prior to 8 September 1996 , without success.

During the pre-trial investigation Superintendent J.M. maintained that H. had not wished to disclose the identity of his narcotics supplier but had agreed to disclose the information without it being written down in the report. The applicant ’ s identity had been established from the telephone number produced by H. The purpose of the first call had been to establish the applicant ’ s connection with H. and whether he had any narcotics in his possession. The applicant had been under police surveillance from the afternoon of 8 September 1996 and he had become a suspect as he had been sighted in a rented car together with M. on that afternoon. The police had received information from independent sources that a narcotics shipment was going to be smuggled into the country on that day in a rented car. The police had planned on stopping the vehicle in which M. and the applicant had driven away from the latter ’ s apartment but had failed. The only way for the police to find the narcotics had been to call the applicant and order one kilogram of cannabis.

In the pre-trial investigation the applicant and H. testified that an order of one kilogram of cannabis had been made in code language in the call of 6 September 1996 .

The District Court

In February and March 1997 the then County Prosecutor ( lääninsyyttäjä , länsåklagaren ) brought charges against J.M. and J.O. for abuse of public office, incitement to commit an aggravated narcotics offence and breach of official duty. The indictment was to the following effect.

From 6 to 8 September 1996 J.M. in his capacity as Superintendent and J.O. in his capacity as Senior Constable acted in the following manner when carrying out a pre-trial investigation into a suspected narcotics offence in which H. was a suspect:

1. [J.M. and J.O.] abused their office in relation to [H.], who was under their direct supervision as a detainee on remand, by ... persuading H., who hoped that it would bring him relief as regards his own situation, to make a deal over the telephone to the effect that [the applicant] sell to him one kilogram of cannabis to enable the police to arrest [the applicant] and confiscate the drugs as the deal was about to take place. They thereby restricted his right to liberty to a greater extent than the aim of his arrest required.

2. [J.M. and J.O.], in the manner explained above, through [H.] on 6 September 1996 , deliberately incited [the applicant] to obtain cannabis unlawfully to deliver it to [H.] together with another person receiving at least ten kilograms of narcotics from the persons who imported the narcotics unlawfully. Of this amount [the applicant] took over 986 grams. When [the applicant] arrived at the location agreed on the telephone with [H.] the police arrested [the applicant] and confiscated the cannabis from his possession. [The applicant] was subsequently convicted of an aggravated narcotics offence. ... They have thereby also breached their official duty.

The applicant associated himself with the prosecution. He also brought an alternative private prosecution to the following effect.

3. [J.M.] breached his official duty in that he did not, by making an annotation in the pre-trial investigation records or by any other means, inform [the applicant], the District Prosecutor or the Helsinki District Court of the circumstances in which [the applicant ’ s] offence had taken place. ... These circumstances had become clear at the end of the trial as the District Prosecutor upon [the applicant ’ s] request had requested a clarification of the facts in issue.

On 25 April 1997 the Espoo District Court held its first hearing. The defence relied, inter alia , on the Court of Appeal ’ s judgment of 10 March 1997 in the applicant ’ s case, in which it was held that there had been an arrangement that the applicant receive the narcotics prior to the police ’ s order. The defence argued that the order had not taken place before 8.11 p.m. on 8 September 1996 .

The applicant gave oral evidence, maintaining that H. had placed the order in his first call, which had taken place on Wednesday 4 or on Thursday 5 September, whereupon the applicant had contacted M. At 8.37 a.m. on 8 September 1996 M. had called the applicant and requested him to take delivery of the narcotics from R. and K. The court also heard oral evidence from H., the defendants and some other police officers.

On 5 June 1997 the court convicted the police officers of abuse of public office and sentenced them to a fine. It held that the facts regarding the telephone calls as described in the indictment were established and stated that it did not believe that H. would have called the applicant solely on his own initiative. It noted that the telephone metering information disclosed that H. had called the applicant at 6.14 p.m. on 6 September and at 1.48 p.m. , 8.11 p.m. and 10.25 p.m. on 8 September 1996 . The remaining charges were rejected.

The Court of Appeal

The parties to the proceedings appealed. In his writ of appeal the applicant submitted, inter alia , that the Court of Appeal ’ s view in its judgment of 10 March 1997 that there had been an arrangement that he receive the narcotics prior to the order was made was incorrect.

On 8 December 1998 the Helsinki Court of Appeal quashed the conviction. As to the incitement charge it reasoned:

On 10 March 1997 [the applicant] was convicted by the Helsinki Court of Appeal ... of several narcotics offences committed from the beginning of the year 1996 ... In that judgment it was established that prior to the police ’ s order made by telephone there had been an arrangement that he would receive a ten kilo narcotics shipment. During the present proceedings, no such circumstances as could give reason to assess this issue in a different manner than in the [above] Court of Appeal judgment have emerged. Accordingly, the order for the narcotics in issue did not affect [the applicant ’ s] guilt as to the possession of the ten kilo of narcotics of which he has been convicted as mentioned above. The guilt of [J.M. and J.O.] as regards a prohibited entrapment operation has not therefore been established. ...

The Supreme Court

The State Prosecutor (who replaced the County Prosecutor ; valtiosyyttäjä , statsåklagaren ) and the applicant requested leave to appeal, which was granted on 15 June 1999 .

In his writ of appeal, the State Prosecutor submitted that it could not be concluded from the Court of Appeal judgment of 10 March 1997 that prior to the police ’ s order there had been an arrangement to the effect that the applicant would receive the narcotics. He challenged the finding as being incorrect. Further, he pointed out that the applicant had been charged and convicted of an offence committed on 8 September 1996 , not of an offence prior to that date. Moreover, no such evidence as to show that the applicant had been involved in the shipment prior to 8 September 1996 had been produced in the present proceedings, either. In any event, it had not even been alleged that the shipment had arrived in Finland on 6 September 1996 , or earlier.

In its judgment of 22 November 2000 the Supreme Court found that H., who had been in detention on remand, had co-operated with the police. It considered that there was no reason to depart from the lower courts ’ establishment of the facts. It however remained unclear how the co-operation had been induced. The court found that on 6 and 8 September 1996 H. had discussed with the applicant in general terms whether it was possible to buy cannabis from him. At 8.11 p.m. on 8 September 1996 H. had placed an order and agreed to meet the applicant the same evening to receive the narcotics. As the applicant had been about to hand over the narcotics he had been arrested. As to the charge of incitement to commit the aggravated narcotics offence, the court noted the following.

According to J.M. ’ s confession, on the evening of 8 September 1996 he had encouraged H. through J.O. to place an order with the applicant for one kilogram of cannabis and to agree on the location where the narcotics would be handed over. H., acting as encouraged, had called the applicant at 8.11 p.m. The court found it established that J.M. and J.O. at 8.11 p.m. had incited the applicant to commit a new offence by selling narcotics to H.

The Supreme Court noted that in their judgments of 3 December 1996 and 10 March 1997 the District Court and the Court of Appeal respectively had found the applicant guilty of an aggravated narcotics offence in that on 8 September 1996 he had been unlawfully in possession of at least ten kilograms of cannabis having unlawfully taken delivery of a car from persons who had unlawfully imported the narcotics in it and by participating in the unloading and the weighing of the narcotics. The share that the applicant had intended to hand over to H. had been one kilogram of those narcotics. In the proceedings against him, he had not been found guilty of selling the kilogram of cannabis in issue to H. In those proceedings, it had however been established that the applicant had been involved in the importing of the ten kilograms of cannabis in question long before 6 September 1996 . According to the Supreme Court, the telephone conversations between H. and the applicant had not therefore had any impact on the receipt by the applicant of the imported narcotics. Thus, the involvement by J.M. and J.O. could not be regarded as having had any causal relation with the offence of which the applicant had been convicted. In order to convict someone of incitement to commit an offence it was a pre-condition that the offence which a person had allegedly been incited to commit had actually been committed. That had not been the case here, because the police intervention had prevented the selling of the narcotics. Accordingly, J.M. and J.O. were not guilty of incitement to commit an aggravated narcotics offence.

The Supreme Court found however that J.M. and J.O. had used prohibited methods when they had brought about the involvement of the applicant and were thus guilty of a breach of official duty.

As to the sentence, the Supreme Court noted the following. Before the placing of the order on 8 September 1996 the police had watched the applicant as a person suspected of involvement in narcotics offences. The police had been tipped off by a third party to the effect that a rented car containing narcotics was going to enter the country during the weekend. On the evening of 8 September 1996 the police had sighted the applicant in a rented car and J.M., bearing in mind the tip-off, had considered it likely that the car was the relevant one and that the narcotics were still in the car. The police had lost sight of the car. In order to prevent the narcotics from entering the market J.M. had decided that the only way was to encourage H. to call the applicant, place an order and agree on a meeting. This had resulted in the applicant ’ s arrest and the confiscation of a large amount of narcotics. The court concluded that considering the seriousness of the situation resorting to the prohibited method was excusable. It therefore decided not to impose a sentence.

Request for a re-opening of the proceedings against the applicant

On 29 September 1998 the applicant requested a re-opening of the case against him. The request was essentially based on the fact that J.M. and J.O. had been convicted of a breach of official duty. He made reference to the case of Teixeira de Castro v. Portugal ( judgment of 9 June 1998 , R eports of Judgments and Decisions 1998 ‑ IV).

On 22 November 2000, thus on the same day judgment in the case brought against Superintendent J.M. and Senior Constable J.O. was rendered, the Supreme Court refused the request.

B. R elevant domestic law and practice

Section 44, subsection 1, of the Police Act ( poliisilaki, polislagen ; Act no. 493/1995) provides that w hen being heard as a witness or otherwise, poli ce personnel are not obliged to reveal the identity of any person who has provided them with confid ential information in their official capacity or to reveal any confidential tactical or technical methods .

At the material time, national legislation did not contain any provisions on the use of undercover transactions or on the use of undercover agents.

On 29 November 2000 Parliament adopted an amendment to the Police Act whereby explicit provisions on certain unconventional preventive methods and investigative techniques, including undercover operations and induced deals, were added to the Act (21/2001).

Chapter 26, Article 11a of the Code of Judicial Procedure (Act no. 4/1734 , as in force at the relevant time) provided that the Court of Appeal should not without special reason examine the authenticity of the lower court ’ s judgment beyond the arguments and facts adduced in the writ of appeal and the reply to the appeal. In the relevant Government Bill (no. 79/1993) the interests of justice were mentioned as a possible ground dispensing a Court of Appeal from the restriction as regards the scope of its examination. It was also proposed that should the Court of Appeal examine arguments other than those put forward by the parties, it should invite the other party ’ s observations on the matter.

CO M PLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that he had been deprived of a fair trial from the outset as he had been incited by the police officers to commit an offence he would not otherwise have committed.

2. He also complained under Article 6 § 1 that his submissions concerning the incitement had been ignored by the Court of Appeal, which had found that the offence had already been committed at the time of the incitement. It had also failed to give adequate reasons for reaching the said conclusion. Such a conclusion could only have been drawn from J.M. and J.O. ’ s statements in the separate pre-trial investigation report, which the prosecution had not relied on. In this respect the applicant further complained under Article 6 § 3(d) that he had not had a right to examine or have examined the witnesses against him as the Court of Appeal had of its own motion relied on the pre-trial statements of two of his co-defendants, R. and K., without hearing them before the court. Moreover, the court had not held an oral hearing even though it had based its conviction on evidence not relied on by the prosecution or the applicant.

3. He further complained under Article 6 § 3(b) that he had not had adequate time and facilities for the preparation of his defence as the telephone metering information had not been disclosed to him. The relevant information had only been communicated to him after an administrative appeal by which time the deadline for the appeal to the Court of Appeal had already expired.

4. In his written observations of 17 April 2001 in reply to the Government ’ s observations the applicant complained under Article 6 § 2 that he had not been presumed innocent by the Supreme Court as it had found on 22 November 2000 (in the criminal proceedings against the police officers) that he had “long before 6 September 1996 been involved in the importing of the ten kilograms of cannabis in question”, an offence he had not even been charged with.

T H E LAW

A. Article 6 § 1 of the Convention

The applicant complained under Article 6 § 1 that he had been deprived of a fair trial as he had been incited by the police to commit an offence which he would not have committed otherwise.

In so far as relevant, Article 6 reads:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] tribunal ...”

The parties ’ submissions

The Government

The Government acknowledged that H. had used a mobile phone given to him by the police to call the applicant, whose identity they had found out with the help of the telephone number produced by H. In mutual understanding with the police H. had discussed in general terms the possibility of buying cannabis from the applicant. Encouraged by the police, H. had later ordered one kilogram of cannabis and agreed to meet the applicant the same night in order to make the purchase. H. had co-operated with the police of his own free will. H. had called the applicant once on 6 September and three times on 8 September 1996 . At the material time, there had been no provisions of law on the use of induced deals, nor on other unconventional investigation methods.

The Government submitted that domestic law did not provide for the possibility of dropping charges in cases where an accused had been induced by the police to commit an offence. The offender was responsible for the offence irrespective of any incitement. In assessing the fairness of a trial, incitement by the police could only be relevant in a situation where “an otherwise law-abiding citizen” would not have committed the offence without being induced by the police. In the present case, the allegation about police incitement had been subject to thorough scrutiny by courts at three levels of jurisdiction in two separate sets of proceedings, in both of which the essential question had been whether the applicant would have committed the offence had he not been induced into doing so. In addition, the Supreme Court had examined the issue in the re-opening case. The outcome of all these proceedings had been the same; the courts had found that the applicant had had a prior arrangement to receive the narcotics prior to the police involvement, which thus had no causal relation with the offence of which he had been convicted. Moreover, he had only been convicted of possession of the cannabis, not of the supply or attempted supply of the one kilogram intended for H. At the same time, he had been convicted of several narcotics offences committed before the offence subject to dispute.

The Government considered that the applicant essentially complained about the assessment of the evidence concerning the police involvement, which was a matter for the domestic courts.

The applicant

The applicant maintained that, at the material time, he had been a 19-year-old student with no criminal record. He had been singled out by H., who had received an irresistible offer from the police and who had only known him by his code name; if H. agreed to set up the arrest of a bigger player, he would go free. H. had been free to choose the person to be entrapped. As H. had been in police custody, he could not have consented of his free will as claimed by the Government. The actions of the police had been random in terms of target. The unconventional measures had been directed not against a professional criminal but against a young man about whom the police had possessed no previous information.

The applicant emphasised that he had not been in possession of cannabis at the time of the order. He had contacted M. and arranged with him to get the kilogram from a larger shipment coming to Helsinki for M. that weekend. The applicant ’ s purpose had been to obtain one kilo of the narcotics for H. Although the applicant acknowledged having committed several other narcotics offences in 1996, none of them had come to the attention of the police prior to H. ’ s telephone calls from police custody. The other offences had been minor and the applicant ’ s sentence would have clearly been more lenient had he not been convicted of the offence in issue. While it was true that he had not been charged with the supply of one kilogram of cannabis, the supply had been subsumed under the handling of the ten kilograms of cannabis which he had been charged with. It would not have been possible to convict him separately of handling the ten kilograms of cannabis and supplying the one kilogram of cannabis, as under domestic law offences concerning the same shipment of narcotics constituted a single offence.

The applicant submitted that it was not simply a question of disagreeing with the courts ’ assessment of the police involvement, he emphasised that no court had agreed to examine whether the offence of 8 September 1996 had taken place as a result of the police provocation.

The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Article 6 §§ 1 and 3(d) of the Convention

The applicant complained under Article 6 §§ 1 and 3(d) that the Court of Appeal had failed to allow him to have examined the witnesses against him and to give an adequately reasoned decision. H e also complained that the Court of Appeal had not he ld an oral hearing even though it had based its conviction on evidence not relied on by the parties.

In addition to the above, Article 6 reads in its relevant part:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

The parties ’ submissions

The Government

As to the lack of an oral hearing before the Court of Appeal, the Government argued that the reservation to the Convention made by Finland had been valid. This part of the complaint was therefore incompatible ratione materiae .

As to the other issues complained of relating to those proceedings, the Government considered that the Court of Appeal had been able to assess all the evidence presented to the lower court. There had been no obstacle to taking into account R. and K. ’ s pre-trial statements as they had been heard before the lower court and the applicant had had an opportunity to put questions to them. Both the District Court and the Court of Appeal had based the conviction on the statements of the applicant, R. and K. The pre-trial statements having been repeated before the District Court, they had become evidence in the proceedings and the Court of Appeal had been able to take into account also this part of the evidence before it. The applicant could have been afforded an opportunity to put questions to R. and K. at the pre-trial stage had he wished to do so. The Government pointed out that the applicant admitted that he had received the investigation records as annexes to the minutes from the first District Court hearing. He could have obtained them before that hearing had he wished to do so. It had become evident in the District Court hearing at the latest that all the accused had given similar accounts of the events leading to the commission of the offence.

The applicant

The applicant contested the relevance of the reservation to the Convention, pointing out that it concerned only the right to an oral hearing, not the right to fair proceedings. The reservation had to be interpreted as meaning that the judicial system had not been restricted to the use of oral appeal procedures as a means of ensuring fair proceedings. Where a court did not hold a hearing, it was required to ensure fairness using other means. In the present case, it had failed to do so. It could, for instance, have invited his additional written observations.

The applicant considered that Article 6 § 3(d) required, at the very least, that the defence be informed what evidence the prosecution was relying on. Further, an appeal court should not surprise the defence by taking into account evidence which had not been relied on by the prosecution.

The applicant maintained that R. and K. had been his co-defendants and that they had not been summoned to testify against him. Their pre-trial statements, which had been regarded by the Court of Appeal as decisive, had not been read out at the District Court hearing. During the hearing they had only acknowledged the charges against them and the prosecution had not put any questions to them. There had therefore been no reason for the applicant to cross-examine them. Neither the defence nor the prosecution had had the slightest inkling that their accounts could be interpreted and used to the applicant ’ s detriment. R. and K. ’ s pre-trial statements had been submitted as evidence of their guilt and not of the applicant ’ s. Counsel had not even known the contents of the statements. The Court of Appeal ’ s reasoning had been totally unexpected. It had also been unacceptable as that court had found him guilty of an offence, taking place on 6 September 1996 at the latest, which was essentially different from the one set out in the indictment.

The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

C. Article 6 § 3(b) of the Convention

The applicant complained that he had not had adequate time and facilities for the preparation of his defence as he had not received the requested telephone metering information.

Article 6 reads in its relevant part:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence; ...”

The parties ’ submissions

The Government

The Government argued that the applicant had not exhausted domestic remedies as he had not raised this issue in any court, including in his appeal to the Supreme Court. Even after receiving the information, he had never contended that the material would have been relevant to the case or that it should have been taken into account as evidence. There had been no special circumstances absolving him from exhausting the domestic remedies at his disposal.

Were the Court to take another view, the Government submitted the following. Anyone could obtain information from the operator concerning calls made from one ’ s own telephone. As to the information concerning the calls to the applicant ’ s phone, a suspect should in principle be informed of the use of coercive measures only after the case had been submitted to the prosecutor or a decision had been made on the termination of the pre-trial investigation. Accordingly, the County Administrative Board had annulled the police ’ s decision not to disclose the telephone metering information and ordered it to be submitted to the applicant. It had found that the information was secret, but as a party to the proceedings he had a right to be informed of documents which might affect his case. It had considered that, from an objective point of view, the relevance of the requested information could not be excluded and that it was a matter for the defence to decide which facts to rely on. The applicant had finally obtained the information and although the relevant time-limit for appeal had expired, he had submitted further material to the Court of Appeal. The court had taken into account his submission of 20 February 1997 , in which he had raised the very issue of the telephone metering information.

The Government furthermore submitted that the police had used the said information for the purposes of investigation. The prosecution had not relied on the information as evidence, nor had the information otherwise constituted evidence in the case. Moreover, having received the information, the applicant had not relied on it as evidence. Nor had he raised any complaint about the rights of the defence not having been respected.

The applicant

The applicant maintained that he had learned by chance that H. had been in detention on remand when he had made the phone calls. Initially, the police had tried to conceal the whole sham purchase. Subsequently, they had refused to produce the telephone metering information, which would have helped to clarify the chronology of the events. This had been directly relevant to the assessment as to whether the offence had taken place prior to or after the police involvement. The information as to the time of the first call had been essential. He had had no other way of receiving the relevant information than from the police. The fact that he could have obtained information from his telephone operator regarding his own dialled numbers was irrelevant as he had never rung the police.

The applicant emphasised that by the time the County Administrative Board had rendered its decision, the deadline for the appeal to the Court of Appeal had expired. The delay had hampered his defence. This had not been made good later on in the proceedings. From the defence ’ s point of view the decisive moments of criminal proceedings were during the pre-trial investigation and the District Court proceedings. If during that phase the defence had not been given all the relevant information on the course of the events, it was in general futile to discover such information after the expiration of the time-limit for appeal.

The applicant challenged the Government ’ s contention that he had not exhausted domestic remedies. He had appealed to the County Administrative Board, which had held that the police had acted wrongly in withholding the information. In fact, the County Administrative Board ’ s reasoning transferred the burden of proof to the Government regarding the violation of Article 6 § 3(b). The granting of equality-of-arms only after an appeal to the Court of Appeal had been filed had not sufficed to compensate the violation that had already taken place. Article 6 § 3(d) required that authorities did not deliberately hamper the defence, for example by concealing the existence of evidence or by not producing evidence before they were ordered to do so by a higher authority.

The Court ’ s assessment

The preliminary objection

The Court observes that in the District Court hearing of 19 November 1996 the applicant informed the court that his request that the police produce the telephone metering information had not yet been granted. On 25 November 1996 the police refused to produce the information. The next day the applicant requested the police to issue a formal decision which could be appeal ed, which they did on 29 November 1996 . At the District Court hearing of 3 December 1996 the applicant informed the court of his efforts to obtain the telephone metering information and requested the court to order its production. As the prosecution submitted a fax from the police in which it was divulged that there had been one phone call on 6 September and three phone calls on 8 September 1996 from the police ’ s phone to the applicant ’ s phone, the applicant had withdrawn his request being satisfied that the fax had given the court sufficient information in order to rule on the incitement allegation.

Having been convicted, the applicant had renewed his request before the Court of Appeal on 2 January and on 20 February 1997 . The court had rendered judgment on 10 March 1997 . The applicant ’ s letter of 11 March 1997, to which he had annexed the decision of the County Administrative Board of 26 February 1997 ordering the relevant information to be submitted to the applicant, had not therefore been taken into account by the court. The file does not disclose the date of the notification of the County Administrative Board ’ s decision, or the date when the telephone metering information was produced.

In his application for leave to appeal of 5 May 1997 the applicant requested the Supreme Court to hold an oral hearing or , alternatively , to refer the case back to the Court of Appeal as regards the police involvement . He criticised, inter alia , the Court of Appeal ’ s reasoning as it had held that H. ’ s phone call of 8 September 1996 had taken place at 9 o ’ clock in the morning, m aintain ing that the court had erred regarding over twenty minutes as the precise moment of the call had been 8.37 a.m. , “the fact of which may be verified with the help of tele phone metering information ”. Further, he annexed a statement by the telephone operator according to which there was an error in the police ’ s telephone metering information. The Supreme Court refused leave to appeal.

In these circumstances the Court finds that the applicant effectively raised this matter before the domestic courts and could not reasonably have been required to take any further action. Consequently, the Government ’ s preliminary objection must be rejected.

The substantive complaint

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

D. Article 6 § 2 of the Convention

The applicant complained that the Supreme Court ’ s finding that he had “long before 6 September 1996 been involved in the importing of the ten kilograms of cannabis in question” had violated the presumption of innocence.

Article 6 § 2 reads:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The parties ’ submissions

The Government

The Government submitted that the applicant had not been charged with any criminal offence in the proceedings against the police officers. Nor had there been at the time of the above finding any pending or intended criminal investigation concerning which the finding about a prosecutable offence might be regarded as prejudging the outcome (see Zollmann v. the United K ingdom (dec.), no. 62902/00, 27 November 2003 ). The Supreme Court had not taken any stance on what offence the applicant had committed as this fact had been decided by a legally binding judgment in the first set of proceedings. Furthermore, the applicant had not, at any stage, been accused of or sentenced for supplying about a kilo of cannabis to H. It remained to be examined whether the proceedings against the police officers nevertheless had been linked to a criminal trial or investigation in such a way as to fall within the scope of Article 6 § 2.

The Government submitted that Article 6 § 2 was aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The criminal proceedings against the police officers had not been linked to any criminal trial or investigation in such a way as to fall within the scope of Article 6 § 2. The Supreme Court ’ s judgment of 22 November 2000 had neither stated nor could it be considered to have implied that the applicant had been criminally responsible for an offence which he had not even been charged with. Accordingly, Article 6 § 2 was not applicable and this part of the application should be rejected as incompatible ratione materiae with the provisions of the Convention.

Were the Court to take another view, the Government submitted the following. The impact of the provocative action by the police had been dealt with thoroughly in two sets of criminal proceedings. The Supreme Court had noted in its judgment of 22 November 2000 that it had become apparent that the applicant had been involved in the importing of the ten kilograms of cannabis long before 6 September 1996, and that the telephone conversation between the applicant and H. had had no impact on the receipt by the applicant of the imported narcotics. There was no causal connection between the measures taken by the police and the offence of which the applicant had been convicted. The Government further submitted that the wording “involved in” in the Supreme Court ’ s statement of reasons did not as such say anything about whether the applicant had already at that time been guilty of an offence. The phrase “involved in” only signified that the police officers ’ actions had not led the applicant to decide to commit the offence. The Supreme Court ’ s reasoning had been necessary in order to determine whether the police officers had been liable for incitement. The crucial question had been whether the principal offender (the applicant) would have been involved in the criminal act related to the ten kilograms of cannabis if the police had not taken the action they did (asking H. to call the applicant and order the narcotics). This issue had been crucial in order to rule on the incitement charges. The Supreme Court ’ s reasoning had not been incompatible with the presumption of innocence.

The applicant

The applicant maintained that he had been charged with, defended himself against and been convicted of a possession offence committed on the evening of 8 September 1996 . In finding that he had been involved in offences connected with the shipment of cannabis even before the narcotics had arrived in the country on the morning of 8 September 1996 , the Supreme Court had violated the presumption of innocence. It had regarde d his guilt as having included the shipment ’ s import , viz . smuggling and the related arrangements which must have been involved given that he had been considered guilty of acts committed on and before 6 September 1996 . Narcotics smuggling, in particular when it was linked to participation in an organisation formed for that purpose, wa s an offence essentiall y more serious than the possession of which he had been accused of.

The applicant argued that he had been lured and provoked by the police into committing the offence set out in the indictment. In the proceedings against him the Court of Appeal had replied to his demands that the incitement be taken into account in assessing whether the act was punishable or that it at least warranted a reduction of the punishment by stating that he had committed the offence on or before 6 September 1996 which had made it impossible that the police could have incited him into committing it thereafter. This kind of assertion would have been admissible if the prosecution had presented it in the course of the lower courts ’ consideration of the charges. As this had not been the case, the applicant had not been afforded an opportunity to demonstrate that he had not been involved in the shipment before 8 September 1996 . The Court of Appeal had assumed the role of prosecutor and the Supreme Court had accepted it. In addition, the Supreme Court ’ s judgment of 22 November 2000 had been based on a prohibited presumption of guilt.

The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Françoise Elens-Pas sos Nicolas Bratza   Deputy R egistrar President