Conviction of the accused of drug trafficking after police instigation and trapping. Violation of fair trial

JUDGMENT

Akbay and others v. Germany 15.10.2020 (app. no. 40495/15, 40913/15 and 37273/15)

see here

SUMMARY

Fair trial and police trapping. The applicants were convicted of importing and trafficking drugs. In order to commit the crime, they were instigated by an undercover police officer who encouraged them to commit the act, allegedly providing them with a safe channel for drug trafficking for the purpose of criminal prosecution. He would have a personal financial benefit. The domestic courts and the Supreme Constitutional Court rejected their appeals for breach of a fair trial on the grounds that they had been given a reduced sentence.

The Court reiterated its well-established case-law that the public interest in the fight against crime could not justify the use of evidence obtained as a result of police instigation and trapping.

The ECtHR found that the applicants’ conviction was based on the statements of the instigating police officers. The domestic courts failed to apply the principles of a fair trial and to bear the burden of proving the existence of incitement.

It found a violation of a fair trial (Article 6 § 1) for the first two applicants as accomplices in the act and a non-violation for the third applicant who provided direct assistance but was not instigated by police.

PROVISION

Article 6§1

PRINCIPAL FACTS

The applicants are three Turkish nationals, Yıldız Akbay, Hakki Soytürk and Dervıs Usul, who were
born in 1977, 1965 and 1969, respectively. Mr Soytürk was detained in Großbeeren (Germany) at the
time of lodging his application, while the other two applicants live in Berlin.

The case concerned the conviction of the first applicant’s husband (N.A.), now deceased, and of the
second and third applicants for drug smuggling and their allegation of police entrapment.
N.A. and the second and third applicants were arrested in August 2011 for smuggling 100 kg of
cocaine. N.A. and the second applicant, who were friends, had organised the importation via
acquaintances of the latter when a dock worker at the port of Bremerhaven (Germany), who was in
fact an undercover policeman, had offered a safe channel for the drugs. The third applicant had
been recruited by N.A. to pick up the drugs from a previously rented flat in Bremerhaven and
transport them to Berlin.

In November 2012 the Berlin Regional Court convicted N.A. of illicit importation of and trafficking in
drugs, while the second and third applicants were convicted of aiding and abetting N.A. Their
convictions were essentially based on their confessions, testimony of the undercover agent and
supervising police officers of a police informant. The court ruled, however, that N.A. and the second
applicant had been incited by the police to commit the offences and therefore considerably reduced
their sentences to four years and five months and three years and seven months, respectively. It
found that the police had not incited the third applicant to commit the offence, but nonetheless
generally mitigated his sentence.

N.A. and the second and third applicants appealed on points of law against this judgment, arguing
that the entrapment should have resulted in the proceedings against them being discontinued. The
Federal Court of Justice dismissed their appeal in December 2013, referring to its well-established
case-law on sentence reduction. Their constitutional complaints were dismissed in December 2014.
N.A. died in June 2015.

Relying on Article 6 § 1 (right to a fair trial), the applicants complained that N.A. and the second and
third applicants had been convicted of drug offences which they had been incited to commit by the
police. The first applicant further argued that she had standing to bring the application in her own
right as she had a moral interest in reestablishing her deceased husband’s reputation after his
unjustified conviction.

THE DECISION OF THE COURT…

When dealing with a charge of police misconduct or trapping, the Court should try to establish, as a first step, whether such incitement or trapping took place. Police incitement occurs when the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves to investigating criminal activity in a passive manner, but exert such influence as to incite an offense that would not otherwise be would have been committed in order to enable the finding of the offense, ie the provision of evidence and the prosecution.

The Court reiterated its well-established case-law in this context, in particular, that the public interest in the fight against crime could not justify the use of evidence obtained as a result of being trapped by the police, as this exposes the accused to the risk of being deprived of definitively a fair trial from the beginning. In order for the trial to be fair within the meaning of Article 6 § 1 of the Convention, all evidence obtained as a result of police instigation must be excluded or a procedure with similar consequences must be applied. A person is not punished for a criminal activity that was the result of instigation by state authorities.

(Ι) Application of these principles to the present case

(1) Regarding Ν.Α. and the second applicant

– Regarding the essential aspect

With regard to NA, the Court noted that, according to the findings of the District Court, at the start of the covert operation there were some initial suspicions that NA, who, however, had a white criminal record, could be trafficking heroin, after information provided by an informant and information received through the monitoring of telephone calls. However, after informant M. contacted the NA, the drug trafficking suspicions were not confirmed for a period of several months and it became clear to the authorities that the NA had no pre-existing contacts allowing him to trade drugs.

However, the police continued to communicate with the NA. through informant M. And pushed him to organize the import of drugs through the seemingly safe channel that was fully controlled by the authorities for a year and a half. The active informant M., had a significant financial interest to arrest the NA. and his possible accomplices for a serious drug trafficking offense due to the reward as promised by the police for his activities.

As regards the second applicant, a friend of NA, the Court noted that, according to the Regional Court, he had been involved in the importation of drugs, as he was known to the supplier in the Netherlands through which, by coincidence, NA was able to organize the Introduction. The second applicant had no previous convictions for drug trafficking, nor were there any preliminary investigations against him or indeed any indication that he had a predisposition to commit such offenses.

Examining whether the second applicant’s involvement in the unlawful act of drug trafficking was determined by the conduct of the police, the Court noted that, according to the District Court, the second applicant decided to contribute to the importation of SE drugs through the port of Bremerhaven due to the seemingly safe channel created by the police.

The Court therefore concluded – in accordance with the findings of the national courts in this respect – that both the offense committed by NA. as well as the second applicant ‘s offense would not have been committed without the influence of the authorities. Thus, as defined in the case law of the Court under Article 6 § 1, they were instigated by the police to commit the crime of drug trafficking for which they were subsequently convicted.

procedural aspect 

In the present case, the District Court used the testimony of the undercover agent and the supervising police officers, the police informant and the minutes of the informant’s report. Although the Government contended that this evidence was ultimately used to convict NA and the second applicant only insofar as they did not contradict their statements, the Court noted, in particular, the second applicant’s allegation that he had confessed because the police informant had made partially untrue statements to the supervising police officers, which were reported by the police officers during the hearing. The District Court confirmed that the police informant had partially described the events that led to the importation of drugs in a very different way from the defendants in their testimony at trial. This was the case, in particular, with regard to the informant’s influence on the SE, which was decisive in finding that there was incitement. So it seems that both the N.A. as the second applicant had no choice but to admit the true extent of the incitement, but to first confess to the offense.

Therefore, the domestic courts did not reach the relevant conclusions in accordance with Article 6 § 1 of the Convention. There has accordingly been a violation of Article 6 § 1 of the Convention in respect of both the first and second applicants’ complaints

(2) Regarding the third applicant

The Court, in accordance with the findings of the domestic courts and the Government in this respect, concluded that the third applicant had not been instigated, as defined in the case law of the Court under Article 6 § 1, by the which act was subsequently convicted. He notes in this context that the work of police informant M. was supervised by the police after authorization by the Prosecutor’s Office and is covered by the general provisions of Articles 161 § 1 and 163 § 1 of the Code of Criminal Procedure. This power of attorney to oversee the covert operation allowed the authorities to be relieved of the burden of proving that there was no incitement to the third applicant’s case. The subsequent use, in the criminal proceedings against the third applicant, of the evidence obtained from the undercover agent, therefore, does not raise an issue under Article 6 1 1.

The ECtHR found a violation of the fair trial (Article 6 § 1) in relation to Yıldız Akbay and Hakki Soytürk and no violation in relation to Dervıs Usul.

Just satisfaction: EUR 18,000 for non-pecuniary damage and EUR 4,190 for costs and expenses to Hakki Soytürk.

 

 


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