The ECHR judgment of 23 November 2017 in the case of Grba v. Croatia (application No. 47074/12).
In 2012, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Croatia.
In the case, the applicant's complaint on his conviction for counterfeiting currency after the operation by secret police agents was successfully considered. The case involved a violation of the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8 of the Convention in connection with the tacit supervision of the applicant.
CIRCUMSTANCES OF THE CASE
The applicant was convicted of four episodes of counterfeiting currency when he was selling counterfeit euros to unofficial police officers. He appealed against the verdict of the court of first instance, indicating, in particular, that the circumstances of the incitement by the police were not adequately examined. His complaints were rejected.
In the European Court, the applicant complained, in particular, of inciting and using evidence obtained as a result of him in the criminal proceedings in his case.
ISSUES OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. The use of an operational method, including the organization by the state authorities of numerous illegal transactions with a suspect, is a recognized and permissible means of investigating crimes when criminal activity is not a single isolated case but a continuing criminal act. In practice, such an operational method can be used to gain the confidence of a person in order to establish the scale of his criminal activity or to identify a larger source of a criminal organization, namely, the disclosure of a larger range of crimes.
However, under the general prohibition of incitement, secret employees tried to investigate the ongoing criminal activity in a passive manner and not to incite such influence to commit a more serious crime than that which the person had already planned to commit without such incitement. It follows that in cases involving the use of this operational method, any extension of the investigation must be justifiable for valid reasons, such as the need to provide sufficient evidence to convict, gain a deeper understanding of the nature and scope of the criminal activity of the suspect or the disclosure of a wider range of crimes. In the absence of these reasons, state bodies may be recognized as participating in activities that improperly expanded the scope or scope of the crime and could unfairly charge the accused with increased sanctions within the prescribed range of penalties or for aggravated offenses. In spite of the fact that, as a rule, questions about the appropriateness of imposing punishments are not within the scope of the Convention, as a matter of justice, the punishment applied must correspond to the crime that the accused really planned to commit. In such situations, although it would not be unreasonable to convict a person, it would be unfair to punish him for that part of the criminal activity that resulted from improper conduct on the part of government agencies.
It was not disputed by the parties that the applicant participated in four meetings during which he was able to issue a significant number of counterfeit euros by selling them to unofficial police officers. The first illegal transaction was the result of the applicant's own deliberate behavior, and there is no reason to believe that he would not have issued a counterfeit currency another time if instead of a police officer, an "ordinary" buyer addressed him.
However, there was no convincing evidence of who had taken the initiative to organize follow-up meetings between the applicant and the unofficial staff. There were no indications that during the relevant period the applicant sold counterfeit currency to someone other than private employees. During the domestic proceedings, secret employees could not explain why the applicant was not detained after the first illegal transfer of the euro, or the motives for the decision to commit numerous illegal transactions. Thus, it is unclear, in accordance with what form of practical guidance, if it was, they acted. The case did not contain information as to whether the respondent Government had taken additional steps to provide evidence that the necessary measures had been taken to prosecute an illegal business forfeiting currency and that could justify resorting to operational methods involving the organization of numerous illegal transactions with the applicant.
Since it was not possible to establish with sufficient certainty whether the applicant was a victim of incitement in violation of Article 6 of the Convention, it is important to verify the procedure for assessing the incitement case in the present case in order to ensure adequate protection of the rights of the defense.
The applicant put forward a provable argument for incitement. The competent criminal courts had to consider why the police decided to start the operation, what evidence was available to it, and in what order it interacted with the applicant. This is especially important in view of the lack of proper control by the investigating judge in giving sanction to this unspoken operation and the contradictory explanations of the unspoken employees regarding the decision-making process for carrying out the secret operation.
While checking the behavior of private employees, domestic courts in most cases confined themselves to ascertaining whether the private employees were acting on the basis of the sanction of the investigating judge. The Supreme Court reiterated and approved the motivation of the lower courts and evaded careful analysis and the provision of a relevant reasoning for accepting or rejecting the applicant's allegation that he was incited to participate in one of the subsequent illegal transactions.
In view of the foregoing, the courts of the respondent State did not fulfill their duty to effectively examine the applicant's argument for incitement, as required by the procedural test for incitement under article 6, paragraph 1, of the Convention. Consequently, the decision-making procedure, which entailed the appointment of a more severe punishment to the applicant for repeated issuance of counterfeit currency, did not meet the requirements of fairness. This does not imply that he was wrongly convicted of making a counterfeit currency, but rather that the courts of Croatia did not establish whether the limit of his criminal activities increased because of his participation in subsequent illegal transactions as a result of improper conduct on the part of the authorities.
The violation of the requirements of Article 6 of the Convention (unanimously) was committed.
The Court also found that there had been a violation of the requirements of Article 8 of the Convention in connection with the private surveillance of the applicant.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 1,500 in respect of non-pecuniary damage.