Teixeira de Castro v. Portugal (44/1997/828/1034) 9 June 1998: entrapment.

Portugal – conviction for drug-trafficking based mainly on statements of two police officers who had incited commission of offence

I. ARTICLE 6 § 1 OF THE CONVENTION
Recapitulation of case-law on admissibility of evidence.
Use of undercover agents had to be restricted and safeguards put in place even in cases concerning fight against drug-trafficking – public interest could not justify use of evidence obtained as a result of police incitement.
In case before Court not contended that officers’ intervention had taken place as part of anti-drug-trafficking operation ordered and supervised by a judge – competent authorities did not have good reason to suspect that applicant was a drug-trafficker – necessary inference from the circumstances of case was that two police officers had not confined themselves to investigating applicant’s criminal activity in an essentially passive manner, but had exercised an influence such as to incite commission of offence. Two police officers’ actions had gone beyond those of undercover agents – their intervention and its use in the impugned criminal proceedings had meant that, right from outset, applicant had been definitively deprived of fair trial.

Conclusion: violation of Article 6 § 1 (eight votes to one).

A. Background to the case
9. In connection with an operation monitoring drug-trafficking, two plain-clothes officers of the Public Security Police (PSP) from the Famaliçao police station approached an individual, V.S., on a number of occasions. He was suspected of petty drug-trafficking in order to pay for drugs – mainly hashish – for his own consumption. They hoped that through V.S. they would be able to identify his supplier and offered to buy several kilograms of hashish from him. Unaware that they were police officers, V.S. agreed to find a supplier. However, despite being pressed by the two officers, he was unable to locate one.

10. Shortly before midnight on 30 December 1992 the two officers went to V.S.’s home saying that they were now interested in buying heroin. V.S. mentioned the name of Francisco Texeira de Castro as being someone who might be able to find some; however, he did not know the latter’s address and had to obtain it from F.O. All four then went to the applicant’s home in the purported buyers’ car. The applicant came outside at F.O.’s request and got into the car where the two officers, accompanied by V.S., were waiting. The officers said that they wished to buy 20 grams of heroin for 200,000 escudos and produced a roll of banknotes from the Bank of Portugal.

11. Mr Texeira de Castro agreed to procure the heroin and, accompanied by F.O., went in his own car to the home of another person, J.P.O. The latter obtained three sachets of heroin, one weighing ten grams and the other two five grams each, from someone else and, on his return, handed them over to the applicant in exchange for a payment, which, though the precise figure is not known, exceeded 100,000 escudos.

12. The applicant then took the drugs to V.S.’s home; V.S. had in the meantime returned there and the two police officers were waiting outside. The deal was to take place in the house. The officers went inside at V.S.’s invitation; the applicant then took one of the sachets out of his pocket whereupon the two officers identified themselves and arrested the applicant, V.S. and F.O., shortly before 2 a.m. They searched all three and found the applicant to be in possession of another two sachets of heroin, 43,000 escudos in cash and a gold bracelet.

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

31. Mr Teixeira de Castro complained that he had not had a fair trial in that he had been incited by plain-clothes police officers to commit an offence of which he was later convicted. He relied on Article 6 § 1 of the Convention, of which the part relevant in the present case reads as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal..."
He maintained that he had no previous convictions and would never have committed the offence had it not been for the intervention of those "agents provocateurs". In addition, the police officers had acted on their own initiative without any supervision by the courts and without there having been any preliminary investigation.

32. The Government submitted that a number of States, most of which were members of the Council of Europe, accepted the use of special investigative measures, in particular in the fight against drug-trafficking. Society had to find techniques for containing that type  of criminal activity, which destroyed the foundations of democratic societies. Article 52 of Legislative Decree no. 430-83, which was applicable to the facts of the present case – and indeed the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 and the Council of Europe Convention of 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime –, thus allowed the use of undercover agents, whose role had however nothing in common with the activity of "agents provocateurs". Furthermore, Article 126 §§ 1 and 2 (a) of the Code of Criminal Procedure laid down high standards that had to be met if the means used for obtaining evidence were to be considered legitimate and lawful.
The two police officers involved in the present case could not be described as "agents provocateurs". A distinction had to be drawn between cases where the undercover agent’s action created a criminal intent that had previously been absent and those in which the offender had already been predisposed to commit the offence. In the instant case, the officers had merely exposed a latent pre-existing criminal intent by providing Mr Teixeira de Castro with the opportunity of carrying it through. F.O (one of the co-accused) had not pressed the applicant, who had immediately shown interest in obtaining the drugs and carrying out the transaction. In addition, when arrested, the applicant had been in possession of more drugs than had been requested by the "buyers".
Lastly, during the proceedings Mr Teixeira de Castro had had an opportunity to question both the two police officers and the other witnesses and to confront them. The Supreme Court had based its assessment not only on the police officers’ intervention but also on other evidence. There was nothing to suggest that the fairness of the trial had been undermined.

33. The Commission considered that the offence had been committed and the applicant sentenced to what was a fairly heavy penalty essentially, if not exclusively, as a result of the police officers’ actions. The officers had thus incited criminal activity which might not otherwise have taken place. That situation had irremediably affected the fairness of the proceedings.

34. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, inter alia, the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports of Judgments and Decisions, 1997-III, p. 711,§ 50).

35. More particularly, the Convention does not preclude reliance, at the investigation stage of criminal proceedings and where the nature of the offence so warrants, on sources such as anonymous informants. However, the subsequent use of their statements by the court of trial to found a conviction is a different matter (see, mutatis mutandis, the Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 21, § 44).

36. The use of undercover agents must be restricted and safeguards put in place even in cases concerning the fight against drug-trafficking. While the rise in organised crime undoubtedly requires that appropriate measures be taken, the right to a fair administration of justice nevertheless holds such a prominent place (see the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, p. 15, § 25) that it cannot be sacrificed for the sake of expedience. The general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement.

37. The Court notes, firstly, that the present dispute is distinguishable from the case of Lüdi v. Switzerland (see the judgment of 15 June 1992, Series A no. 238), in which the police officer concerned had been sworn in, the investigating judge had not been unaware of his mission and the Swiss authorities, informed by the German police, had opened a preliminary investigation. The police officers’ role had been confined to acting as an undercover agent.

38. In the instant case it is necessary to determine whether or not the two police officers’ activity went beyond that of undercover agents. The Court notes that the Government have not contended that the officers’ intervention took place as part of an anti-drug-trafficking operation ordered and supervised by a judge. It does not appear either that the competent authorities had good reason to suspect that Mr Teixeira de Castro was a drug-trafficker; on the contrary, he had no criminal record and no preliminary investigation concerning him had been opened. Indeed, he was not known to the police officers, who only came into contact with him through the intermediary of V.S. and F.O (see paragraph 10 above).
Furthermore, the drugs were not at the applicant’s home; he obtained them from a third party who had in turn obtained them from another person (see paragraph 11). Nor does the Supreme Court’s judgment of 5 May 1994 indicate that, at the time of his arrest, the applicant had more drugs in his possession than the quantity the police officers had requested thereby going beyond what he had been incited to do by the police. There is no evidence to support the Government’s argument that the applicant was predisposed to commit offences. The necessary inference from these circumstances is that the two police officers did not confine themselves to investigating Mr Teixeira de Castro’s criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence.
Lastly, the Court notes that in their decisions the domestic courts said that the applicant had been convicted mainly on the basis of the statements of the two police officers.

39. In the light of all these considerations, the Court concludes that the two police officers’ actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed. That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial. Consequently, there has been a violation of Article 6 §1.

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