DISSENTING OPINION OF JUDGE DAVID THÓR BJÖRGVINSSON

I disagree with the majority that there has been a violation of Article 6 § 1 of the Convention in this case.

As explained above in the judgment, this case is closely linked to the case of Malininas v. Lithuania (judgment of 1 October 2008), where the Court also found a violation of Article 6 § 1 of the Convention.

In paragraph 45 above the majority accepts that the Criminal Conduct Simulation Model (the Model) had been authorised only in respect of Mr Malininas, the applicant in the above-mentioned case, and not at any time did the police agents have direct contact with the applicant in this case. In spite of this, the majority comes to the conclusion that, in the case of the applicant, the police agents did not “merely "join" an on-going offence; in the circumstances of the present case, they instigated it also in respect of the applicant.”

My grounds for finding no violation is this case are the following:

Firstly , I believe that in the earlier case it had been sufficiently substantiated that Mr Malininas was predisposed to commit a drug offence before the Model was implemented. I would point out that this Court has accepted that the very circumstances in a particular case may be indicative of a pre-existing criminal activity or intent and thus justify undercover operations of the kind involved in the case. Among such factors is the demonstrated familiarity of a person with the drug market; such as knowledge of prices of different drugs , as well as an ability to obtain drugs at short notice (See Bannikova v. Russia , no. 18757/06 , § 42 , 4 November 2010 , and Shannon v. the United Kingdom (dec.) , no. 67537/01 , ECHR 2004-IV). A strong indication of Mr Malininas ' primary involvement in drug dealings was his apparent familiarity with the drug market , when approached by the police agent , as he was already well informed about prices of psychotropic drugs , as well as about possible suppliers of such drugs , in particular Mr Lalas , the applicant in the case at hand. For this reason I believe the undercover operations against Mr Malininas were justified [2] . Thus it cannot be said that the police by way of unjustified undercover operations directed at Malininas instigated an offence in respect of the applicant in this case.

Secondly, as regards the applicant himself, and using the same criteria as above, it is striking that he was ready and able to fulfil Mr Malininas requests for psychotropic drugs worth of 3000 US dollars at relatively short notice. It is hardly conceivable that someone, to whom the world of drug trade was unknown before, would be able push through a deal of this magnitude so quickly. This is enough to show that the applicant was clearly predisposed to commit a drug offence before the Model was implemented against Mr Malininas.

Thirdly , as stated earlier the applicant in this case was never mentioned in the aut horisation for the Model (see paragraphs 19 and 45 above). It is furthermore not disputed that the undercover police agents never at any time contacted the applicant directly , but they only had contact with Mr Malininas. Under these circumstances it is of less relevance whether the applicant himself was predisposed to commit drug offences before the police officers approached Mr Malininas. The stark reality is that the applicant , without any direct incitement or pressure from the police agent , agreed to supply Mr Malininas , who was just another private individual , with large quantities of illegal drugs.

For these reasons I come to the conclusion that there has been no violation Article 6 § 1 in this case.

[1] See Salduz v. Turkey , [GC] 36391/02 of 27 November 2008 , Joint Concurring Opinion of Judges Rozakis , Spielmann , Ziemele and Lazarova Trajkovska; see also Cudak v.Lithuania , [GC] 15869/02 of 23 March 2010 , Concurring Opinion of Judge Malinverni , joined by Judges Casadevall , Cabral Barreto , Zagrebelsky and Popović.

[2] See also Judge Cabral Barreto’s dissenting opinion in the case of Malininas v Lihuania , cited above.