Resolution CM/ ResDH (2013)40 [1]

Constantin and Stoian and Bulfinsky against Romania

Execution of the judgment of the European Court of Human Rights

(Application No. 23782/06, judgment of 29 September 2009, final on 29 December 2009 and

Application No. 28823/04, judgment of 1 June 2010 , final on 1 September 2010 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in the above cases and to the violations established ( see document DH-DD(2012)672 E );

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2 0 12)672E ) ;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Action report

Applications

Case

Judgment of

Final on

23782/06

Constantin and Stoian v. Romania

29/09/2009

29/12/2009

28823/04

Bulfinsky v. Romania

01/06/2010

01/09/2010

These cases concern the unfairness of criminal proceedings which ended with the applicants ’ conviction for drug trafficking (violations of Article 6, paragraph 1).

In the case of Constantin and Stoian , the European Court found a police agent, who introduced himself as an alleged buyer in a transaction with the applicants, had procured a criminal activity which would not have happened otherwise (§62 of the judgment).

In both cases, the European Court found that the domestic courts had not properly examined the applicants ’ pleas of entrapment. In the case of Constantin and Stoian , the European Court noted that the applicants had been acquitted by the first-instance court, which found that there had been active incitement by the police. However, the appellate court sentenced the applicants to 7 and 6 years ’ imprisonment respectively. In the case of Bulfinsky , the applicant was sentenced to 12 years ’ imprisonment.

The police operations were carried out in April 2002 (case of Bulfinsky ) and November 2003 (case of Constantin and Stoian ). The final domestic court decisions were given in April 2004 and May 2006, respectively, by the High Court of Cassation and Justice.

The European Court awarded the applicants Marius-Georgian Constantin and Cristian-Răzvan Bulfinsky just satisfaction for the non-pecuniary damage suffered as a consequence of the violation. The just satisfaction was duly paid to the applicants.

No just satisfaction was awarded to the applicant Florin Stoian .

Based on the European Court ’ s judgment, the applicant Marius-Georgian Constantin requested the reopening of the impugned proceedings under Article 408¹ of the Code of Criminal Procedure (hereinafter “the CPP”).

The High Court of Cassation and Justice allowed the applicant ’ s request for reopening. Upon re-trial, by a decision of 15 November 2010, the High Court of Cassation and Justice quashed the conviction in respect of both applicants and acquitted them of the charges of drug trafficking. It should be also mentioned that the applicant Marius-Georgian Constantin was released pending re-trial.

In the case of Bulfinsky , High Court of Cassation and Justice allowed the applicant ’ s request and ordered a retrial not only in respect of the applicant, but also in respect of his two co-defendants in the impugned proceedings. It also ordered their release pending retrial. The retrial proceedings are currently pending at first-instance, before the Bucharest County Court.

In the light of the above, the Government consider that that no further individual measures are required in the present cases. As regards the case of Mr. Bulfinsky , the Government underline that there is no doubt that in the retrial proceedings the domestic courts will redress the deficiencies of the original proceedings identified in the European Court ’ s judgment. Indeed, the information publicly available on the website of the Bucharest County Court indicate that this court is currently in the process of taking evidence from witnesses and the police collaborator with protected identity involved in the impugned police operation.

A. Issues related to the use of undercover agents

As regards the investigative phase, the European Court noted in both cases that:

(i) at the time the police operations were authorised there had been no indication that the applicants were involved to drug-related crimes; and

(ii) the prosecutors ’ orders authorizing the use of undercover agents did not give details or refer to any objective evidence concerning unlawful behaviour by the applicants.

Having regard to the European Court ’ s findings, the Government consider that this court did not call into question the legal framework on the investigation of drug-trafficking and related offences, namely Law No. 143/2000 on the prevention and control of illicit drug traffic and use .

In this respect, it should be noted that at the material time, this Law provided that the use of undercover agents could be authorised by the public prosecutor only when there were good reasons to suggest that an offence was committed or was about to be committed (Art. 21). Moreover, the Code of Criminal Procedure (the “CCP”) expressly forbade inciting a person to commit a criminal offence for the purpose of obtaining evidence (Art. 68).

The Government consider that the shortcomings identified by the European Court in this context resulted from an incorrect practice by the investigative authorities and not from inadequate legislation.

The Government would like to point out the fact that the use of undercover agents was a fairly new investigative technique at the time the impugned fact occurred, having been introduced into the domestic criminal procedure only in 2000.

As shown under point 1 above, Law No. 143/2000 on the prevention and control of illicit drug traffic and use offered guarantees as regards the use of undercover agents to investigate drug-related offences.

Moreover, when the CPP was modified in 2003 to allow the use of undercover agents in the investigation of other serious crimes in the context of the fight against organised crime, the Parliament endeavoured to enforce the statutory safeguards for the rights of the defence .

Thus, on 1 January 2004 detailed rules on the use of undercover agents introduced in the CPP by Law No. 278/2003 (Articles 224¹ - 224 ³ ) entered into force. They are applicable to investigations into various serious crimes ( inter alia trafficking of drugs, weapons and persons, money laundering and corruption).

The new provisions contain a number of additional safeguards which had not been in force at the time the facts at the origin of the two cases occurred. In particular, they now set as a prerequisite for such measures the existence of “a reasonable suspicion” that a crime was committed or is about to be committed.

Furthermore, they provide that when authorising the use of undercover agents, the prosecutor must, in particular:

- indicate the concrete evidence that suggests that an offence was committed or is about to be committed and give reasons as to why the measure is justified;

- indicate the actions that the undercover agents are allowed to carry out;

- indicate the duration for which the measure is authorized.

Such safeguards must be read in conjunction with the general prohibition contained at Article 68 of the CPP, which provides that it is forbidden to incite the commission of an offence with a view to obtaining evidence.

The Government underline that the impugned police operations occurred in both cases prior to 1 January 2004.

In order to ensure that the relevant authorities apply the current statutory framework in the field of undercover operations in a manner compatible with the requirements of the Article 6 which result from these judgments, the judgments together with a summary in Romanian which outlined the European Court ’ s main findings were transmitted to the General Prosecutor ’ s Office and to the General Inspectorate of the Romanian Police. This measure was taken with a view to the dissemination of the judgments to all the prosecutor offices and police units throughout the country, so they could be debated in workshops and activities related to the professional training of the prosecutors and police units with attributions in undercover operations.

B. Issues related to the court proceedings

1. Origins of the violation

a) The case of Constantin and Stoian

In this case, European Court found that the applicants ’ conviction on appeal was based on a fresh assessment of the same evidence which had supported their acquittal at first-instance. In particular, the appellate court did not hear direct evidence from the applicants, the undercover agents and other witnesses. Moreover, when returning its verdict, the appellate court gave precedence to witness statements made before the prosecutor in the detriment of those made before the court of first instance without proper justification and also failed to give a convincing answer to the applicants ’ plea of entrapment.

In October 2005, when the appellate court gave its decision in this case (which was upheld on appeal of points of law in May 2006), the provisions of the Code of Criminal Procedure applicable to the trial on appeal read as follows:

Art. 378 Trial on appeal

(1) Upon appeal, the court examines the appealed judgment based on the works and material contained in the case file and on any new written evidence submitted on appeal.

(2) When deciding the appeal, the court can make a fresh assessment of the evidence contained in the case file and may take new evidence, when it considers necessary.

(3) The court is compelled to examine all grounds for appeal raised before it.

The Government note that the abovementioned provisions did not expressly make the appellate court ’ s power to reassess the evidence produced at first instance contingent on the appellate court ’ s hearing direct evidence. Said provisions left however to the appellate court the discretion to decide if new evidence was necessary and to order it to be administrated before it.

The Government thus consider that the European Court ’ s judgment in the aforementioned case called essentially into question the application of these provisions in the case at hand.

b) The case of Bulfinsky

In this case, the European Court found that in convicting the applicant and his co-defendants of drug trafficking, the domestic courts (both-first instance and appellate courts):

(i) failed to hear direct evidence from the undercover agents and some other conclusive witnesses and to provide the defence with a possibility to cross examine them in court or at least in writing, despite the defence ’ s request in this respect;

(ii) failed to reply to the defence ’ s requests for material evidence to be taken (fingerprints and video recordings);

(iii) failed to give adequate reasons for giving precedence to the statement obtained by the investigators from one of the applicant ’ s co-defendants, when this statement diverged from the one given before the court;

(iv) dismissed the defendants ’ plea of entrapment in a summary manner.

The Government would like to point out that the abovementioned shortcomings resulted in part from a misapplication of the relevant provisions of the CCP, as in force at the material time (2002 – 2004).

Indeed, pursuant to Art. 327, §1 of the CPP, the courts must take evidence from the witnesses in public hearings; it is only when the direct examination of the witness is no longer possible that the court can order that their statements given to the prosecutor are read (Art. 327, §3 of the CPP).

Art. 330 of the CPP provides that the courts, on their own motion or on request from the defence or the prosecution, will order that the existing material evidence is produced, when they consider this to be necessary.

Art. 356, §1 (c) of the CPP provides that a court decision shall contain in particular an analysis of the evidence taken into account for the determination of the criminal aspects of the case and also of the evidence which was set aside by the court, together with an analysis of any factual elements that support the court ’ s verdict.

As regards in particular the hearing in court of the undercover agents, the Government acknowledge that the failure of the domestic courts (in particular the first-instance court and the appellate court, which both gave judgments in 2003) to take direct evidence from them might be explained by the lack at the material time of specific legal provisions that would allow striking a balance between the rights for the defence and the interest of protecting such agent ’ s identity.

2. Measures taken

In respect of the failure of the convicting court to take direct evidence from the applicants in the case of Constantin and Stoian , the Government refer to the measures that had been taken to avoid similar violations following the judgment in the case of Constantinescu v. Romania , as set out in CM/ ResDH (2011)29 (in particular the amendments brought to the provisions of the Code of Criminal Procedure regulating the examination of the accused persons by Law No. 356/2006). Indeed, it should be pointed out that the court proceedings in the abovementioned case were terminated prior to the entry info force of such legislative amendments, on 7 September 2006.

As regards the hearing in court of the undercover agents (case of Bulfinsky ), as of 1 January 2004, specific rules were introduced in the CCP, which opened the possibility for such agents to be heard through video transmission with distorted voice and image (Art. 86², §3) and to be questioned in the presence of the accused and the defence counsel. Under Art. 86¹, §§6 and 7 of the CPP, statements from such witnesses can only serve as evidence if corroborated by facts and circumstances which result from all the evidence adduced in the case.

The new provisions thus introduced additional safeguards to ensure that evidence obtained through police entrapment cannot be relied upon by the courts to justify a conviction.

As regards the remaining shortcomings identified by the European Court , the Government recall their view that they raise issues related to the application of the relevant provisions of the CPP and not to their content.

In order to ensure that the Romanian courts examine pleas of entrapment and conduct the trials in similar cases in a manner that is fully compatible with the requirements of Article 6 of the Convention, the authorities proceeded to the publication and the wide dissemination of these judgments T hese measures are in particular expected to ensure that the provisions of the CPP which grant the courts discretion in matters related to the taking of evidence will be construed and applied in the light of the requirements of a fair trial resulting from these judgments.

To that end, both judgments were translated into Romanian and published in the Official Journal and on the websites of the High Court of Cassation and Justice ( www.s c j.ro ) and of the Superior Council of Magistracy ( www. c sm1909.ro ).

The Government further sent the translation of the judgments together with a summary thereof to the Superior Council of Magistracy for dissemination to all domestic courts. Also, it should be recalled that the Convention and the European Court ’ s case-law make the object of specific programmes for the initial and continuing training of the Romanian magistrates (judges and prosecutors alike) organised by the National Institute of Magistracy.

The Government consider that no other individual or general measures are to be taken in the present cases and that Romania complied with the obligations imposed under Article 46, paragraph 1 of the Convention. The Government therefore invite the Committee of Ministers to close the examination of these cases.

[1] Adopted by the Committee of Ministers on 7 March 2013 at the 1164th meeting of the Ministers’ Deputies.