The applicant, Oleg Morari, is a Moldovan national. The case concerns an allegation of police entrapment. In December 2008 Mr Morari was convicted of participating in the production of a false Romanian identity card. His conviction was based on evidence obtained during an undercover operation. Notably, in January 2008 the Balti police had placed an advertisement in a newspaper concerning help in obtaining passports to which Mr Morari had replied. Following the telephone call, he met with an undercover agent who said that he was also looking to obtain a Romanian passport. Both men agreed to keep one another informed if they found an easy way to obtain a passport. A few weeks later the agent contacted Mr Morari to enquire whether he had made any progress in his search. Mr Morari informed the agent that he had found a person who could help and, when the agent refused to contact this person directly but proposed a deal involving one of his acquaintances (another undercover agent), agreed to act as an intermediary in the arrangement. On concluding the deal in April 2008, he was arrested by the police. The first-instance court did not consider Mr Morari’s entrapment plea. The two higher courts which examined his appeal and appeal on points of law (in March 2009 and July 2009, respectively) examined his allegation of entrapment, but dismissed it on the ground that it was Mr Morari who had been the first to call the telephone number in the advertisement. All the courts refused to hear the undercover agents, finding that according to the law, they could be heard only if they consented to having their identities disclosed. Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, Mr Morari alleges that he was a victim of police entrapment and that the courts failed to examine this complaint in the proceedings against him.
The Court having admitted the case recounted the government submissions were that their agents E and T had not exerted direct influence on the applicant so as to incite him to commit an offence. The Government submitted that it was the applicant who had placed an advertisement in a newspaper concerning services relating to forged documents. Building on that submission, the Government contended that the applicant had not been a victim of incitement and that he had in fact been the one who had taken the initiative of providing T. with a forged Romanian passport. In the Government’s view, the undercover officers had had an essentially passive role and they had merely joined the criminal acts committed by the applicant.\The Government further argued that the fact that the applicant had committed the offence for the first time was irrelevant and they expressed doubt concerning the applicant’s contention that he had not known that the identity card which he had obtained from Z. was false. In so far as the procedural aspect was concerned, the Government submitted that the domestic courts’ refusal to hear E. and T. in the criminal proceedings was compatible with the domestic law and that, more importantly, no statements made by E. and T. had been used to convict the applicant in the first place. Moreover, the Government expressed the view that the courts’ refusal to hear the undercover agents had acted in favour of the applicant because the undercover agents would certainly have confirmed that the applicant had committed the offence imputed to him.
The Court noted the applicant alleged that he had been a victim of entrapment by the police and that E. and T. had not confined themselves to observing his criminal activity in a passive manner but had exerted direct influence on him so as to incite him to commit an offence.
The Court began its judgment by reiterating that as a general rule the admissibility and assessment of evidence is a matter for regulation by national law and appreciation by the domestic courts (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997-III; Ramanauskas v. Lithuania [GC], no. 74420/01, § 52, ECHR 2008; Bykov v. Russia [GC], no. 4378/02, § 88, 10 March 2009). Nevertheless, the admission of some evidence can render a trial unfair. Such has been found to be the case, for instance, of evidence obtained as a result of ill-treatment with the aim of extracting a confession (see Jalloh v. Germany [GC], no. 54810/00, § 99, ECHR 2006‑IX) or of evidence obtained by way of police incitement or entrapment (see Teixeira de Castro v. Portugal, 9 June 1998, Reports, § 38, 1998-IV).
It recalled the test that police incitement occurs where the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution (see Ramanauskas, cited above §55 as further developed in Bannikova v. Russia (no. 18757/06, § 47, 4 November 2010) and in Veselov and Others v. Russia (nos. 23200/10, 24009/07 and 556/10, § 92, 2 October 2012) where the Court observed that undercover operations must be carried out in an essentially passive manner, without any pressure being put on the applicant to commit the offence through means such as taking the initiative in contacting the applicant, renewing the offer despite his initial refusal, insistent prompting, the promise of financial gain such as raising the price beyond average, or appealing to the applicant’s sense of compassion. In addition the court recalled its own previous judgement where it held in Ramanauskas (cited above, § 60) that where an accused asserted that he had been incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention, all evidence obtained as a result of police entrapment must be excluded. This was especially true where the police operation had taken place without a sufficient legal framework or adequate safeguards.
In terms of the burden of proof the Court recalled this lies on the authorities to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable. The scope of the judicial review must include the reasons why the undercover operation was mounted, the extent of the police’s involvement in the offence, and the nature of any incitement or pressure to which the applicant was subjected (see Ramanauskas, cited above §§ 70-71; Bannikova v. Russia, no. 18757/06, § 48, 4 November 2010; Ciprian Vlăduț and Ioan Florin Pop v. Romania, nos. 43490/07 and 44304/07, § 83, 16 July 2015).
Finally the Court considered that where the information disclosed by the prosecution authorities does not enable the Court to conclude whether the applicant was subjected to police incitement, it is essential that the Court examine the procedure whereby the plea of incitement was determined in each case in order to ensure that the rights of the defence were adequately protected, in particular the right to adversarial proceedings and to equality of arms (see Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR 2004‑X; Ramanauskas, cited above, § 61). For more general principles concerning the issue of entrapment see Bannikova v. Russia (cited above, §§ 33-65).
Applying the law to the facts here the Court noted applicant was convicted on the strength of evidence obtained during an undercover operation. As established during the domestic proceedings, and contrary to the submissions made by the Government (see paragraph 26 above), the applicant first replied to a newspaper advertisement placed by the police which concerned facilitation of obtaining Romanian passports. It does not appear from the materials of the case-file that the applicant contacted E. repeatedly after their first encounter. On the contrary, it was the undercover agent E. who contacted him several weeks later and enquired whether he had progressed in his endeavour to obtain a Romanian passport. When the applicant informed E. about Z. and proposed to him to contact Z. directly, E. insisted that the applicant act as an intermediary and promised him financial gain if he accepted.
The Court stated it was not been able to find in the materials submitted to it any indication that the offence would have been committed by the applicant without such intervention. Indeed, it does not appear from those materials and from the Government’s submissions that before the commencement of the undercover operation the authorities had knowledge of or any objective evidence that the applicant had previously been involved in producing and/or trading with forged documents. This, in the Court’s opinion, clearly demonstrates that the applicant was subjected to prompting and incitement to engage in the criminal activity of which he was convicted. The above findings alone might be sufficient basis for the Court to find a breach of Article 6 of the Convention.
Nevertheless, it stated it would also examine the manner in which the domestic courts dealt with the applicant’s defence concerning entrapment. It notes that the first instance court did not even take into consideration the applicant’s entrapment plea. The two higher courts that examined his appeal and appeal on points of law limited the examination of the entrapment plea to finding that the applicant had been the first one to call the telephone number from the newspaper advertisement. Moreover, all the courts refused to hear the undercover agents, stating that according to the law, they could be heard only if they consented to have their identities disclosed.
The Court further notes that according the domestic law the undercover agents’ identity could not be disclosed without their consent. In the present case, however, the applicant has seen both of the agents in person. Had the agents’ names known to the applicant been false, the courts had the opportunity to continue using those names for the purposes of the proceedings, without disclosing their real names. In the Court’s view, it was fundamental, in the circumstances of the present case, to hear E. and T. in order to properly determine the issue of entrapment raised by the applicant. However, the domestic courts omitted to do that. In this latter respect, the Court recalled that it will generally require that the undercover agents and other witnesses who could testify on the issue of incitement should be heard in court and be cross-examined by the defence, or at least that detailed reasons should be given for a failure to do so (see Lagutin and Others v. Russia, nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, §§ 101, 24 April 2014)
In the light of the above, the Court considered that the applicant was convicted on the basis of evidence obtained by way of police incitement and the courts which examined the case did not carry out a careful examination of his assertion that he had been incited to commit the offence imputed to him. Accordingly, the criminal proceedings against the applicant were not fair and there has been a violation of Article 6 § 1 of the Convention.
The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the breach of his right to a fair trial and awarded the applicant EUR 3,500 for non-pecuniary damage.
European Court of Human Rights
It has been asked are police officers paid to catch criminals or create them? While courts have recognized the perfectly legitimate devices for the purpose of detecting crime and securing evidence it is clear that without proper due process backstops there is the risk of abuse – to woo or lure an apparently innocent person into the commission of a crime, not contemplated by him, for the purpose of prosecuting him (John B. Williams, 1957).
On the other hand The European Convention of Human Rights (and other regional and international legal instruments) do not prohibit special investigative methods provided the techniques used do not violate human rights.
In this case the court reviewed the case file to conclude that the conferred public power was abused and that the police had overstepped their powers. It recounted previous jurisprudence as well as the legislative history of the domestic law to find (without much difficulty it can be said) that the investigative methods as used here were unlawful of themselves –but in addition it noted that the issues were compounded by refusing to allow the agents be cross-examined. It meant in this case the personal aspects of the defendant such as any propensity to commit the crime was confused with issues regarding police conduct.The use of undercover agents must be balanced with the principle equality of arms –crucial in criminal proceedings so as to allow everyone charged with an offence to have an equal opportunity to defend himself/herself with that of the prosecution. This was denied to the applicant here and the court easily found in his favour.