FOURTH SECTION

DECISION

Application no . 42605/07 Teofil LUCA against Romania

The European Court of Human Rights (Fourth Section), sitting on 23 May 2017 as a Committee composed of:

Vincent A. De Gaetano, President, Iulia Motoc, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 17 September 2007,

Having regard to the partial decision of 5 February 2013 ,

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

1. The applicant, Mr Teofil Luca, is a Romanian national who was born in 1959 and is detained in Baia Mare. He was represented before the Court by Ms A.I. Bindea, a lawyer practising in Baia Mare.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

A. The circumstances of the case

4. On 16 July 2002 the mother of R.A.M., a thirteen ‑ year ‑ old girl, lodged a criminal complaint against the applicant, alleging that he was involved in her daughter ’ s running away from home. The girl was found by the police at the applicant ’ s hotel. According to her initial statements, confirmed later before a prosecutor and the county court, she had been held by the applicant and his accomplice, C.I., and forced to work as a prostitute. During her time at the applicant ’ s hotel, over the course of about four months, she had had sexual relations with ten clients.

5. On 17 January 2003 police heard from a girl from the Republic of Moldova, C.L., after she lodged a complaint claiming that the applicant had seized her passport. She contended that he had forcibly held her in his hotel and made her work as a prostitute. When she had tried to escape, the applicant had seized her passport. The police officers carried out steps to recover her passport, and on 22 January 2003 an official report concerning the handover of the passport by the applicant was issued.

6. Starting with the lodging of the first criminal complaint in 2002, several testimonies were taken from witnesses and girls allegedly coerced by the applicant into performing sexual acts with his clients (on 22, 29, 30 and 31 January 2003, 18 February 2003 , 11 March 2003, 7 and 12 April 2003, 16 and 19 June 2003).

7. On 19 December 2003 the father of a fourteen-year-old girl, B.I., lodged a criminal complaint, claiming that his daughter was missing from home. The police found the girl at the applicant ’ s hotel, where she had been coerced into prostitution.

8. Preliminary steps undertaken by investigators revealed that the criminal activity carried out by the applicant concerned about eighteen girls, nine of whom were minors and socially and financially vulnerable (some of the girls had run away from home, and some of them were institutionalised). C.I. and L.R. were also involved in coercing underage girls working for the applicant as bar dancers into prostitution.

9. With a view to completing the investigation, on 17 June 2003 the Maramure ș County Court authorised the interception of the applicant ’ s telephone conversations and his being video recorded.

10 . On 2 July 2004 the prosecutor ’ s office attached to the Maramureș County Court authorised the use of four undercover agents (“Zoli”, “Otto”, “Erno” and “Daniele”). The justification given for such an intervention was that, following a preliminary investigation initiated in January 2003, there was a strong indication that the applicant and C.I. were both involved in trafficking in persons and controlling prostitution for gain. The alleged criminal activities were carried out in a tourist complex managed by the applicant.

11. On 28 June 2004 the applicant met one of the undercover agents, Zoli. The latter asked him to find young girls to entertain and offer sexual services to a group of foreign tourists, who intended to spend a few days in his hotel. The applicant promised to find four girls and asked for 120 euros (EUR) for each girl, on the condition that the money was paid in advance. Their meeting was recorded.

12. The activities undertaken by the undercover agent were duly summarised in an official report. The banknotes intended for the applicant were marked with a fluorescent substance.

13. The meeting between the undercover agents and the four girls, chosen by the applicant for that occasion, took place at the applicant ’ s hotel on 5 July 2004. Police officers, acting with the undercover agents, caught the applicant red-handed, after he had received the banknotes marked with a florescent substance from the undercover agents. A body search of the applicant revealed that he had EUR 44,600 in his possession. The money was confiscated. The police officers also carried out a search of the hotel (authorised by the relevant judge). Everything was video recorded.

14. A search report and a flagrante delicto report were issued on 5 July 2004.

15. A prosecutor issued arrest warrants on behalf of the applicant, C.I. and L.R. They were arrested on charges of trafficking in persons, controlling prostitution for gain, and conspiracy to commit offences. The prosecutor noted in his decision that since 2002 the applicant had recruited and exploited several underage girls, most of them between fourteen and seventeen years old.

16 . On 6 July 2004 the applicant was questioned and denied his involvement in any criminal activities.

17. On the same day he was remanded in custody by an interlocutory judgment delive red by the MaramureÈ™ County Court. His detention was subsequently extended by the court every thirty days.

18. On 28 July 2004 the MaramureÈ™ County Court held a closed hearing for certification of the telephone conversations and audio-visual recordings from 28 June and 5 July 2004 (see paragraphs 11 and 13 above) . The hearing was held in the presence of the applicant, who was assisted by a lawyer of his own choosing.

19. On 29 July 2004 the applicant and his co-accused were formally charged with the offences of trafficking in persons, conspiracy to commit offences, and controlling prostitution for gain.

20. The applicant and his co-accused, L.R., gave evidence before the court on 26 October 2004. C.I. was heard on 23 November 2004.

21. The applicant ’ s lawyer asked the court to hear from the undercover agents. He also asked to have the recordings they had made played in court. His applications were dismissed, on the grounds that the court had no adequate technical devices for protecting the anonymity of the undercover agents and playing the recordings. However, the court pointed out that the transcripts of the recordings and the reports issued by the undercover agents were available for consultation in the file. The applicant did not contest the authenticity of the recordings.

22. The applicant also submitted a list of witnesses to give evidence on his behalf . Some of these witnesses were his former employees who had knowledge about the discussions and the arrangements made for the accommodation of the group of foreign tourists (see paragraph 11 above). The court did not hear all the witnesses proposed by the applicant, justifying its rejection on the basis that new evidence did not seem necessary, taking into account the evidence which had already been adduced.

23. On 3 November 2005 the county court decided to sever the charge concerning the offence of trafficking in persons, on the grounds that the alleged victim, C.L. (see paragraph 5 above), could not be found, despite efforts made by the police. Based on their investigation, it appeared that she had left Romania after the applicant had returned her passport.

24. Testimonies from twenty-four witnesses, most of them victims, their parents and persons and people working for the applicant at the tourist complex, were heard by the court in the presence of the applicant and his counsel. According to their statements, most of the girls had been employed by the applicant as dancers at the bar belonging to the tourist complex. The girls described how they had prostituted themselves, and provided details on how the applicant had put them in contact with the clients and how money had been given to the applicant for their services.

25. Two of the witnesses complained that they had been threatened by the applicant. The county court took measures to protect them.

26. In his final submissions, the applicant pointed out that several of the girls who had given evidence against him during the investigation stage had changed their initial statements in open court. He did not complain of incitement to commit the offences on the part of the undercover agents.

27. By a judgment of 2 March 2006 the county court convicted the applicant and his co-defendant C.I. of controlling prostitution for gain and conspiracy to commit offences, and sentenced them to eight years ’ imprisonment. It noted that between June 2002 and July 2004 they had induced into prostitution eighteen girls, including nine underage girls. It also noted that t hat had not been the applicant ’ s first criminal offence, as he had been convicted on 10 October 2002 of causing physical injury.

28. As regards the applicant ’ s submissions that a few girls had withdrawn their initial statements incriminating him, the court decided to rely on those testimonies which had been confirmed by other evidence available in the file. Consequently, it considered that the testimonies given by certain witnesses at the pre-trial stage of the proceedings were accurate, as they had been corroborated by the statements of sixteen witnesses given in open court. Moreover, some of the girls and their parents had confirmed their statements given at the pre-trial stage.

29. The court also based the applicant ’ s conviction on the telephone and audio ‑ visual recordings made on 28 June and 5 July 2004 (see paragraphs 11 and 13 above), whose transcripts were attached to the file.

30. Relying on Article 329 § 4 of the Criminal Code, the court ordered the confiscation of the EUR 44,600 found in the applicant ’ s possession at the time of his arrest (see paragraph 13 above), which was considered to be benefit obtained from his criminal activity.

31. The applicant lodged an appeal, alleging that he had not been allowed by the first-instance court to adduce evidence, and asked the court to hear evidence in his defence.

32 . On 22 June 2006 the Cluj Court of Appeal dismissed the applicant ’ s appeal, upholding the judgment of the county court. It held that the applicant, who had been assisted by counsel, had had the opportunity to prepare his defence and present his arguments in the court. Moreover, the lower court had explained its conclusions thoroughly, and had not based its decision solely on the evidence obtained during the undercover operation carried out on 5 July 2004, but mostly on the statements given by witnesses and the victims. It had allowed only evidence requested by the applicant which it had considered to be pertinent and useful for clarification of the case.

33. The applicant filed an appeal on points of law, claiming that none of the evidence requested by him had been allowed by the lower courts.

34. On 24 October 2006 the High Court of Cassation and Justice dismissed the applicant ’ s appeal on points of law, upholding the lower courts ’ decisions.

B. Relevant domestic law

35. The relevant provisions of the Code of Criminal Procedure, in force at the material time, and Law no. 143/2000 concerning the use of undercover agents are set out in Constantin and Stoian v. Romania (nos. 23782/06 and 46629/06, §§ 33-34, 29 September 2009).

COMPLAINTS

36. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention of the unfairness of the criminal proceedings against him.

THE LAW

37. The Court deems it appropriate to disjoin the present case from application no. 14249/07, to which it was joined in the partial decision of 5 February 2013.

38. The applicant alleged that he had been denied the right to a fair trial by the involvement of four undercover agents in the commission of the offences, whom he had had no opportunity to confront in the criminal proceedings against him. Secondly, he claimed that, at the trial stage, the domestic courts had dismissed several of his applications for further evidence, even though such additional evidence could have demonstrated his innocence. Finally he argued that the evidence referred to by the domestic courts had not been sufficient to establish his guilt. He relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read:

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

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;

... ”

A . The parties ’ submissions

39. The applicant contended that his alleged criminal activity prior to the police incitement had not been proved, as, in his view, a few complaints lodged by the parents of girls who were minors and who had willingly left home and been found at his hotel had no relevance.

40. The applicant submitted that, at the trial stage, the domestic courts had dismissed several of his applications for evidence. He claimed that, in spite of his repeated applications, he could not confront the undercover agents in the court proceedings, and the recordings made by the undercover agents had not been played in open court.

41. He also contested the assessment of the evidence by the domestic courts, claiming that many contradictions between the statements of the witnesses had not been taken into account by the courts in reaching their decisions. In his opinion, the domestic courts had given more credibility to the statements given by witnesses during the investigation stage than to the statements given by the same witnesses in the proceedings before the courts.

42. The Government contended that, in the present case, the undercover agents had not incited the applicant to commit the offences he had been convicted of.

43. They also contended that the applicant ’ s conviction had mainly been based on statements given by the victims and witnesses, and that the statements of the undercover agents had not played an important role in this respect.

44. The Government further submitted that that had not been the applicant ’ s first criminal offence, as he had been convicted on 10 October 2002 of causing physical injury. Moreover, they submitted that, in connection with their testimonies against the applicant before the Ma ramureș County Court, two of the witnesses had complained that they had been threatened and their physical integrity had been endangered. The county court had taken measures to protect them.

45. The fact that the applicant had been familiar with criminal activities had been proved by his prompt reaction to the request made by the undercover agents; he knew how and where to find people willing to work as prostitutes. The Government argued that the undercover agents had confined themselves to investigating the applicant ’ s criminal activity in an essentially passive manner.

46. The Government submitted that the applicant, assisted by a lawyer of his choosing, had been able to present his own version of events. In the three procedural stages of the trial, the reasons advanced by the domestic courts for their conclusion that the applicant ’ s arguments were refuted by the evidence in the case file, and that the additional evidence requested by the applicant was not relevant to their assessment of the case, did not disclose any sign of arbitrariness.

B. The Court ’ s assessment

47. The Court reiterates t hat the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article, which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court ’ s primary concern under Article 6 § 1 is to evaluate the overall fairness of criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, ECHR 2015, and Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010 ‑ VI ). In making this assessment, the Court will look at the proceedings as a whole, having regard to the rights of the defence, but also to the interests of the public and the victims that crime is properly prosecuted (see Schatschaschwili , cited above, §101, and Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010-IV ) and, where necessary, to the rights of witnesses (see, amongst many authorities, Al ‑ Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011-VI ).

48. Concerning the applicant ’ s allegations that the evidence referred to by the domestic courts had not been sufficient to establish his guilt, and that the courts had rejected his applications for evidence from additional witnesses and the taking of further evidence that could have demonstrated his innocence, the Court reiterates that the admissibility of evidence is primarily governed by domestic law, and that, as a rule, it is for the national courts to assess the evidence before them. It is also normally for the domestic courts to decide whether it is necessary or advisable to hear a witness, since Article 6 does not grant the accused an unlimited right to secure the appearance of the witness in the court (see S.N. v. Sweden , no. 34209/96, § 44, ECHR 2002 ‑ V).

49. While the Court accepts the use of undercover agents as a legitimate investigative technique for combating serious crimes, it requires the provision of adequate safeguards against abuse, as the public interest cannot justify the use of evidence obtained as a result of police incitement (see Teixeira de Castro v. Portugal , 9 June 1998, §§ 34-36, Reports of Judgments and Decisions 1998-IV).

50. Turning to the present case, the Court observes that, although the applicant alleged before the Court that he was incited by undercover agents to commit the offences, he did not clearly formulate an incitement defence in the domestic proceedings (see paragraphs 26, 31 and 33 above; see also, mutatis mutandis , Vayser v. Estonia (dec.), no. 7157/05, 5 January 2010). At his first questioning after his arrest, the applicant did not allege that he had been subjected to pressure to commit the offences, and nothing suggests that he used that defence later, either during the investigation or at trial. He denied his involvement in any criminal activity throughout the criminal proceedings against him, and raised an incitement plea only in his application before the Court.

51. What the applicant contested before the domestic courts was the fact that he had not been allowed to confront the undercover agents, and that the recordings made by the undercover agents had not been played in open court (see paragraph 21 above).

52. The Court notes that some of the evidence against the applicant had been obtained from an undercover operation, authorised by a prosecutor in a reasoned decision, in compliance with the provisions of the domestic law. Criminal complaints lodged by the parents of underage girls who had run away from home and been found at the applicant ’ s hotel, as well as testimonies from some of the victims (see paragraphs 4 - 7 above) gave rise to a criminal investigation against him and his co-defendants, before and independently of the covert operation. Based on the investigators ’ initial findings concerning an organised criminal network – led by the applicant – involved in the procurement and trafficking of young girls, the prosecutors considered the involvement of undercover agents necessary.

53. While the Court finds regrettable the fact that the domestic courts did not hear the undercover agents or the recordings made by them, it notes that the domestic courts did not base their decisions solely on the evidence resulting from the use of undercover agents (see, by contrast, Ali v. Romania , no. 20307/02, § 102, 9 November 2010 ). Moreover, th e Court notes that the Maramureș County Court certified the audio-recordings in a closed hearing (see paragraph 18 above).

54. The key evidence against the applicant consisted of a significant number of statements given by the victims, their parents and people working for the applicant at the tourist complex, even before the mounting of the covert operation. Such statements were confirmed later at the trial stage (see paragraph 24 above). Although several witnesses withdrew their initial statements against the applicant on the grounds that they were not able to remember the statements or what had happened in 2003, most of them confirmed their statements at the pre-trial stage.

55. Against this background, the Court has no reason to challenge the domestic courts ’ finding that, even without taking into consideration the statements of the witnesses who had changed their initial statements, the available body of evidence as a whole provided a sufficient basis for the applicant ’ s conviction, and consequently those statements were not decisive in establishing the applicant ’ s guilt (see paragraph 28 above).

56. The Court notes that, in the course of his trial, the applicant, who was represented by counsel, was able to provide his own version of events, and had an opportunity to point out any incoherence in the statements of the witnesses heard at trial (see paragraph 24 above), and disclose any inconsistency in relation to the rest of the evidence referred to by the domestic courts. The reasons advanced by the domestic courts for their conclusion that the applicant ’ s related arguments were refuted by the available evidence do not disclose any sign of arbitrariness.

57. As regards the applicant ’ s complaint that he was not allowed to present evidence which supported his case, the Court notes that the domestic courts addressed all the applications made by him in this respect, and the reasons upon which they based their decisions are sufficient to rule out that their rejection was arbitrary (see paragraphs 22 and 32 above).

58. Having regard to the above considerations, the Court is satisfied that the domestic courts were able to conduct a fair and proper assessment of the applicant ’ s case, and that the rights of the defence were not restricted to an extent which is incompatible with the guarantees provided by Article 6 of the Convention. In conclusion, it considers that, taken as a whole, the proceedings in issue were fai r for the purposes of Article 6 § 1, read in conjunction with § 3 (d) of the Convention.

59. The Court therefore holds that the applicant ’ s complaints under Article 6 § § 1 and 3 of the Convention are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to disjoin the present application from application no. 14249/07, to which it was joined;

Declares the reminder of the application inadmissible.

Done in English and notified in writing on 15 June 2017 .

Andrea Tamietti Vincent A. De Gaetano              Deputy Registrar President