Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (the United States of America);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Non-pecuniary damage - award

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1985 and lives in Riga.

On 23 August 2012 a federal grand jury sitting in the United States District Court for the Southern District of New York indicted the applicant on five counts of conspiracy to violate the criminal laws of the United States. He was charged with conspiracy to commit bank fraud, with a maximum prison sentence of thirty years; wire fraud, with a maximum prison sentence of twenty years; access device fraud, with a maximum prison sentence of five years; computer intrusion, under several subsections, with maximum prison sentences of five and ten years; and aggravated identity theft, with a mandatory prison sentence of two years, which must run consecutive to the sentence for any other offence.

The charges were based on allegations that the applicant and his co-conspirators, as members of a criminal enterprise, had created and distributed malicious software known as the “Gozi Virus”, which had infected computers worldwide, including in the United States. It was suspected that the Gozi Virus had been designed to steal login credentials, such as usernames and passwords, for online bank accounts and other internet-based accounts. The data had then been used to withdraw funds from victims’ accounts in the United States and Europe. It was alleged that the applicant specialised in creating software to work in conjunction with the Gozi Virus and other malicious software to deceive an account holder into divulging personal information.

Following the issuance of the indictment, on 23 August 2012 the United States District Court for the Southern District of New York issued a warrant for the applicant’s arrest in relation to the offences listed in the indictment.

On 27 November 2012, pursuant to the 2005 US-Latvia Extradition Treaty, the United States Department of Justice submitted to the Latvian authorities a request for the applicant’s extradition from Latvia to the United States, which was delivered to the Office of the Prosecutor General on 3 December 2012.

On 3 December 2012 M.V., Prosecutor of the International Cooperation Division, ordered the police to arrest the applicant in accordance with section 699 of the Criminal Procedure Law (Kriminālprocesa likums) (arrest for the purpose of extradition). The prosecutor referred to the United States’ request of 27 November 2012 for the applicant’s extradition.

At 11.21 a.m. on 4 December 2012 the applicant was arrested at his place of residence under section 699(1) of the Criminal Procedure Law. A search of his residence was carried out, which lasted until 1.20 p.m.

The record of the applicant’s arrest indicated that he had been informed of his rights under section 698 of the Criminal Procedure Law, including the right to invite a lawyer. The Government stressed that the applicant had not requested a list of lawyers or an opportunity to use a telephone. He had asked to call his mother. The record was signed by the applicant and an investigator. The text of section 698 of the Criminal Procedure Law (paragraph 73 below) in three languages, Latvian, English and Russian, was attached to the record. The applicant had signed under that text, having written “[the applicant] has read [and] familiarised [himself]”.

According to the applicant, however, he was deprived of an opportunity to contact a lawyer for legal assistance until 1.20 p.m. on 4 December 2012. In his submission, the above-mentioned record confirmed only that he had not expressed such a request. It had been impossible to call for any legal assistance because during the arrest he had been laid face down on the floor, with his head covered and his arms tied behind his back. When the search had continued in a car park at around 2 p.m., he had been permitted to use the phone.

The Government drew attention to the fact that later the same day a lawyer, A.O., and his assistant, I.S., had been appointed to represent the applicant, based on agreement no. 172.

The Government submitted, and the applicant affirmed, that on 5 December 2012 a prosecutor had informed the applicant’s lawyer, A.O., that the following day the applicant would be brought before the Riga City Centre District Court (Rīgas pilsētas Centra rajona tiesa) for a detention hearing. According to the Government, they agreed that the applicant would be given an opportunity to acquaint himself with the extradition request prior to the detention hearing.

About thirty minutes prior to the hearing on 6 December 2012 at the District Court, the applicant and A.O. were provided with a complete case file. The Government referred to a record of the same day indicating that the applicant had disagreed to his extradition in a simplified procedure. The record was signed by the applicant and his lawyer.

The hearing commenced at 2.30 p.m. on the same day. The minutes, furnished by the Government, indicated that the hearing had been held in camera and that no requests had been made to the court at the start of the hearing. According to the minutes, the applicant and his lawyer, A.O., contested the contents of the extradition request and asked that a more lenient measure than detention be imposed on the applicant.

In the applicant’s submission, the following statement by A.O., recorded in the minutes, reflected the untimely service of the documents at issue:

“[A.O.] – My client is currently legally unprepared, therefore [A.O.] shall speak first...”

The minutes showed that after A.O. had made his argument, to which I.S. had not wished to add anything, the applicant, having stated that he “had read all the documents in Latvian”, continued to dispute the allegations against him and the measure of detention proposed.

Following the hearing, at 4.30 p.m. the investigating judge ruled that the applicant be detained under section 702 of the Criminal Procedure Law (“pre-extradition detention”).

The investigating judge’s written ruling stated that the hearing had been closed to the public.

The ruling further noted the prosecutor’s submission in support of the applicant’s detention as follows:

“... a request for [the applicant’s] extradition to the United States for criminal prosecution has been received ...

The extradition request has been sent under Article 7(1) of the [2005 US-Latvia Extradition Treaty] and it contains all the information and documents as required by Article 7(2) and (3) of the said Treaty, as well as by section 702(1) of the Criminal Procedure Law ...”

The ruling also indicated the applicant’s submission that the accusation against him was vague.

The relevant part of the investigating judge’s reasoning for granting the prosecutor’s request for the applicant’s detention read as follows:

“... [the investigating judge] agrees with the prosecutor’s proposal [to impose on the applicant pre-extradition detention].

Section 702(1) of [the Criminal Procedure Law] prescribes that pre-extradition detention be applied after receipt of a request for a person’s extradition along with [the documents listed under section 702(1) of the Law].

The documents prescribed under section 702(1) of [the Criminal Procedure Law], including [an arrest warrant issued against the applicant in the United States] have been attached to the prosecutor’s request ... no reasons to exclude the possibility of extradition are known.

The proposal has been submitted in compliance with section 702 of [the Criminal Procedure Law]; [an arrest warrant has been issued in the United States] in respect of [the applicant], therefore a competent institution has assessed the necessity of [the applicant’s] detention; and therefore ... a legal basis exists for the application of pre-extradition detention with respect to [the applicant]. Also, the grounds for deprivation of liberty set out in Article 5 § 1 (c) of [the Convention] permit the application of pre-extradition detention – the necessity to bring him before the competent legal authority on reasonable suspicion of having committed an offence.

In view of the foregoing and based on Article 7(1) of the [2005 US-Latvia Extradition Treaty] and sections ... 701 [and] 702 of [the Criminal Procedure Law], Article 12(2) of the European Convention on Extradition and Article 5 § 1 (c) of [the Convention], the investigating judge has decided to impose on [the applicant] the pre-extradition detention.”

The ruling was not subject to appeal.

In his application to the Court the applicant alleged that during the detention hearing he had been placed in a dock with metal bars. He had been instructed by the police to cover his head with the hood of his jacket. From that time onwards, the mass media had circulated photographs depicting him in the courtroom behind the metal bars and wearing a hood.

According to the Government, the applicant had not been placed in a dock with metal bars during the hearing concerning his detention.

The Government referred to the applicant’s placement in a metal cage in a subsequent hearing held on 30 January 2013 before the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) concerning his extradition (paragraphs 53 and 54 below).

Furthermore, the Government argued that the applicant had never been asked to pull the hood of his jacket over his head. There were no State Police regulations requiring such a measure. It was solely the applicant’s decision to do so. The Government relied on the applicant’s statement to the mass media, published on 5 June 2013, to that effect, the relevant part of which read as follows:

“As to why he had hidden his face in a hood, [the applicant] explained that ‘...[he] thought that it was a horrible misunderstanding, it could not be happening [to him]. If [he] showed [his] face, [he] would not be able to tell that it had not happened to [him]. [The applicant] was worried about [his] family, honour, parents, about [his] father’s health ...’”

In reply to the Government’s observations, the applicant responded in relation to his placement in a metal cage during the aforementioned hearing on 30 January 2013. At the same time, with respect to the detention hearing on 6 December 2012 he appeared to maintain that he had been instructed by the police to wear the hood.

On 12 December 2012 the applicant addressed a hand-written complaint, in the State language, to the Riga Regional Court (Rīgas apgabaltiesa) about the ruling of 6 December 2012 authorising his pre-extradition detention.

On 17 December 2012, the Judge of the Riga City Centre District Court, R.S., responded to the applicant’s complaint as follows:

“...a decision ... under section 701(2) of the Criminal Procedure Law (provisional detention) ... is without appeal.

Section 702(3) of the Criminal Procedure Law (pre-extradition detention) provides that a proposal for pre-extradition detention is decided following the procedure as for a request for provisional detention.

Therefore, in accordance with the provisions of the Criminal Procedure Law ... a ruling of the judge on pre-extradition detention may not be appealed against ...”

It appears that on 25 February 2013 the applicant submitted to the Riga City Centre District Court a request to lift his pre-extradition detention or to substitute it with a different security measure.

On 28 February 2013 the Judge of the Riga City Centre District Court, R.S., gave the same response as the one given on 17 December 2012 (paragraph 32 above). He added that under the Criminal Procedure Law an investigating judge was not competent to examine whether pre-extradition detention should be continued or terminated.

On 27 August 2013 the applicant’s lawyer, E.R., requested that an investigating judge of the Riga City Centre District Court review the applicant’s detention and order his release.

On 3 September 2013, as is apparent from the case file, the Investigating Judge of the Riga City Centre District Court, K.K., refused the request. She reasoned that in accordance with the Criminal Procedure Law, pre-extradition detention was not subject to review. Furthermore, the maximum term of detention of one year prescribed in section 702(5) of the Law had not yet been exceeded.

The investigating judge also indicated that section 281(2) of the Criminal Procedure Law did not apply and no review of the pre-extradition detention could be conducted under that provision.

On 11 September 2013 E.R. lodged a complaint with the President of the Riga City Centre District Court.

On 30 September 2013 the complaint was dismissed.

On 27 December 2012 the applicant submitted a hand-written request, in the State language, to the Prosecutor of the International Cooperation Division, M.V. The applicant asked the prosecutor to lift his detention on the grounds that the extradition of a Latvian citizen was not permissible.

On 3 January 2013 M.V. refused the applicant’s request. He explained that in the event of any conflict between the 2005 US-Latvia Extradition Treaty and the Criminal Procedure Law, the former would prevail. Under the treaty, extradition could not be refused based on citizenship. That response was subject to appeal to a higher prosecutor.

During July and August 2013 the applicant lodged before the prosecution further requests to lift his detention.

On 10 October 2013 M.V. ordered the applicant’s release.

He reasoned as follows:

“...there are grounds to believe that the [applicant’s] complaint to the [Court] will not be decided until 4 December 2013, i.e., until the maximum term of pre-extradition detention prescribed under section 702(5) of the Criminal Procedure Law – one year –has expired with respect to [the applicant].

As [the Court] has determined a provisional measure ... [the applicant’s] surrender may not be carried out within the maximum term of pre-extradition detention.

Therefore [the prosecutor] deems that the purpose of pre-extradition detention – to prevent the person from fleeing and to ensure [his] surrender ... to a requesting State – has ceased to exist.”

On 11 January 2013 the applicant complained to the Office of the Prosecutor General about the circumstances of his arrest. In particular, he complained that his mother had not learnt about it until after 2 p.m. on 4 December 2012 when she had returned home. She had called him on the phone, and he had been able to speak to her only because he had been allowed to use his phone to contact a lawyer. The applicant also complained that he had been denied the possibility to contact a lawyer. His complaint was forwarded to the State Police for examination.

On 25 February 2013 the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs) completed an inquiry.

It was established that the applicant had answered his mother’s phone call at the time of the search of the vehicle used by him. When his mother had arrived at the car park, the police officers had told her about the United States extradition request. They had also provided information on the applicant’s whereabouts. That had been affirmed by the applicant’s mother herself in her request of 11 January 2013 addressed to the State Police.

With respect to legal assistance, it was found that the applicant had been provided with a list of lawyers. As he had indicated himself, he had been allowed to use a phone to contact a lawyer. He himself had signed the record of arrest stating that a lawyer’s presence was not required, and that he had been informed of his rights under section 698 of the Criminal Procedure Law, including the right to invite a lawyer.

The Internal Security Office concluded that there were no grounds for disciplinary proceedings against the police employees involved in the operation.

On 20 December 2012 M.V. issued a ruling finding the United States’ request for the applicant’s extradition permissible.

The ruling spelled out the allegations against the applicant and their legal classification under the United States Code. It indicated that on 23 August 2012 an arrest warrant had been issued against the applicant in the United States. The applicant’s extradition was held to be permissible based on the following:

“- the maximum limit of the sentence of deprivation of liberty for the crimes [the applicant] is accused of exceeds one year;

- no criminal proceedings have been initiated in the Republic of Latvia for the crimes for which the United States Department of Justice has requested [the applicant’s] extradition;

- no decision has been taken in the Republic of Latvia not to initiate or to terminate the criminal prosecution for the crimes for which [the applicant’s] extradition has been requested;

- no court decision has entered into force with respect to [the applicant] for the crimes for which the extradition has been requested;

- the crimes of which [the applicant] is accused are not of a political or military nature;

- [the applicant] is a citizen of the Republic of Latvia, however, pursuant to Article 3 of [the 2005 US-Latvia Extradition Treaty] citizenship is not a basis for the refusal of extradition;

- the statutory limitation periods have not expired either in the Republic of Latvia or in the United States;

- [the applicant] has not been granted a pardon for the same crimes.”

That ruling was subject to appeal to the Criminal Cases Chamber of the Supreme Court.

On 11 January 2013 the applicant and his lawyer lodged an appeal against the aforementioned ruling before the Criminal Cases Chamber of the Supreme Court.

The appeal hearing was scheduled for 30 January 2013 in courtroom no. 207, which was not equipped with a dock with metal bars. According to the applicant, he was never taken to that courtroom.

In view of the considerable media attention, the Criminal Cases Chamber decided to relocate the hearing to a larger courtroom, no. 213. It was the only courtroom equipped with a dock with metal bars. The applicant was placed in that dock.

At the start of the hearing the applicant’s lawyer, I.B., requested that the Criminal Cases Chamber close the hearing to the public and prohibit filming. The Criminal Cases Chamber refused to exclude the public from the hearing. It reasoned that the proceedings concerned the permissibility of extradition and not the imposition of detention. On the other hand, it prohibited under section 485 of the Criminal Procedure Law the continuation of filming and the use of any material already filmed.

During the hearing interpretation was provided to the applicant.

The applicant’s lawyer, I.B., submitted that at the start of the proceedings the applicant had not been provided with a lawyer. Also, in the course of the proceedings the State authorities had not verified his language knowledge. He had therefore been unable to understand the documents served on him. These had been provided only half an hour prior to the detention hearing, so neither the applicant nor his lawyer had been able to prepare their argument with respect to the documents presented.

On 31 January 2013 the Criminal Cases Chamber announced its ruling. In view of the smaller public attendance than the previous day, the hearing was held in a smaller court room, no. 207, without a metal cage.

I.B. pointed out that the previous day the applicant’s face had appeared in the media, even though any recording had been prohibited.

The Criminal Cases Chamber upheld the impugned ruling, stating as follows:

“[The Chamber] concludes that the prosecutor has verified the extradition request in compliance with the requirements of section 704 of the Criminal Procedure Law. [He] has assessed carefully whether grounds for [the applicant’s] extradition exist, in compliance with section 696 of the Criminal Procedure Law, and has made justified conclusions as to the permissibility of [the applicant’s] extradition to the United States of America.”

The Criminal Cases Chamber further found that there were no grounds for refusing the applicant’s extradition under section 697 of the Criminal Procedure Law. It reasoned as follows:

“... Article 3 of [the 2005 US-Latvia Extradition Treaty] provides that citizenship ... is not grounds for the refusal of extradition.

... [the 2005 US-Latvia Extradition Treaty] has a higher legal force than section 697(2)1) of the Criminal Procedure Law, which prohibits the extradition of a Latvian citizen.

The Criminal Cases Chamber finds declaratory the defence’s indication that [the applicant’s] human rights would be violated if he were extradited to the United States of America.

The United States of America is a democratic [State], which, in concluding the treaty on extradition with Latvia, undertook to comply with human rights standards and the rule of law, and to guarantee an accused the right to a fair trial, including the right to a trial in an independent and impartial court.

It follows from the case material that [the applicant] mentioned in the record of [his] arrest that he understands the Latvian language and neither in the course of his arrest, nor when together with his defence he was getting acquainted with the United States’ extradition request did [the applicant] indicate that the participation of an interpreter was required. Also, in the detention hearing ... without the participation of an interpreter he gave his explanation, noting that the accusation presented had not stated exactly what he had done.

Likewise ... [the applicant] had himself written applications and requests in the Latvian language.”

The ruling was final.

On 12 April and 15 July 2013 the applicant lodged constitutional complaints before the Constitutional Court (Satversmes tiesa).

The applicant argued, inter alia, that the 2005 US-Latvia Extradition Treaty and the national law that ratified it were incompatible with Article 90 of the Constitution (Satversme) (right to be informed of rights) and its Article 92 (right to a fair trial) and Article 98 (prohibition of extradition of a Latvian citizen).

The applicant further requested that sections 701(2) and 707(2) of the Criminal Procedure Law prohibiting an appeal against the judge’s ruling on provisional detention and the court’s ruling on the permissibility of extradition, respectively, be declared unconstitutional.

On 31 May and 31 July 2013 the Constitutional Court refused to open a case. The relevant part of its decision read as follows:

“The preamble of the Extradition Treaty expressis verbis provides that the parties to the treaty undertake to ‘have due regard for the rights of individuals and the rule of law’ and are ‘mindful of the guarantees under their respective legal systems which provide an accused person with the right to a fair trial, including the right to adjudication by an independent and impartial tribunal established pursuant to law’.

Therefore the Extradition Treaty expressis verbis foresees the same protection as the first and fourth sentences of Article 92 of the Constitution, as well as the third sentence of Article 98 of the Constitution, even though [the applicant] contests the compatibility of the Extradition Treaty precisely with these provisions.

Likewise, in accordance with Article 15 of the Council of Europe Convention on Cybercrime, the contracting parties shall ensure that persons under criminal investigation or adjudication do not have less human rights protection and procedural safeguards than those foreseen in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The US has ratified the Council of Europe Convention on Cybercrime, without making reservations with respect to Article 15 of that Convention, which has been in force in the United States of America since 1 January 2007. The applicant is accused of committing crimes which correspond to those mentioned in Articles 2 through 10 of the Convention on Cybercrime.

The Collegium of the Constitutional Court also indicates that pursuant to the [Criminal Procedure Law] and the Extradition Treaty, a court of general jurisdiction has the precise duty to ensure that an individual’s fundamental rights are observed in a concrete extradition procedure.

Also, in the case-law of the European Court of Human Rights it has been found that a person to be extradited must be guaranteed human rights protection specifically in the course of the extradition process ...

At the same time the European Court of Human Rights has held that a possibility that a person may receive a severe punishment, for example, a prolonged term of imprisonment, does not always of itself constitute a sufficient basis for a decision to refuse his or her extradition to the US ...

The Cabinet of Ministers will adopt the final decision on [the applicant’s] possible extradition to the US, which is also under an obligation to observe the human rights protection guarantees provided for in the Constitution, the Convention and the Extradition Treaty.

Therefore ... the legal reasoning on the possible incompatibility of the Extradition Treaty ... is obviously insufficient to grant the claim.

The legislator has a wide margin of appreciation to decide which cases may be considered at several court instances and also the procedure for their adjudication ...

... it has not been substantiated how Article 91 of the Constitution could impose a mandatory duty on the legislator to foresee the same rights for persons with respect to whom an investigating judge has taken a decision to order provisional detention as for persons for whom detention has been imposed as a security measure.”

On 7 June 2013 the Ministry of Justice wrote to the United States Department of Justice. Referring to Article 98 of the Constitution (paragraph 72 below) the Ministry asked the Department of Justice to guarantee as follows:

“1) in case of extradition, during the criminal procedure, [the applicant’s] human rights will not be violated and he will have such rights in criminal procedure as rights to fair trial, including rights to defence;

2) in case of conviction, human rights prescribed for in the international law will be ensured to [the applicant] in his place of imprisonment in USA;

3) in case of conviction and after his request for transfer, [the applicant] will have the right to serve his sentence in the Republic of Latvia, according to [Article] 3 of the Treaty on Extradition between Latvia and USA and Convention on the Transfer of Sentenced Persons of European Council from March 21, 1983.”

The request drew attention to the range of sanctions for the crimes at issue under the Criminal Law (Krimināllikums), in particular sections 1771(3) and 1931(3) (paragraph 74 below) and that the maximum term of imprisonment did not exceed fifteen years.

On 4 July 2013 the Embassy of the United States in Riga provided Diplomatic Note No. 078-13, the relevant part of which read as follows:

“The Constitution and laws of the United States, including the treaties to which we are a party, incorporate all fundamental human rights ... The fundamental guarantees apply before conviction, and post conviction if confinement is adjudged. No person extradited to the United States may be subjected to torture or cruel and unusual punishment.

In the case of [the applicant], as previously stated in the extradition request, the death penalty is not an applicable punishment, and he therefore shall not be deprived of life in any event.

Finally, in accordance with Article 3 of the Extradition Treaty between the Government of the United States of America and the Government of the Republic of Latvia, signed on December 7, 2005, if convicted, the United States will make best efforts to honor a request from [the applicant] to serve his sentence in Latvia in accordance with the Council of Europe Convention on the Transfer of Sentenced Persons and the implementing statutes thereto, should he apply for such a transfer. In the event that the application cannot be honored, the Government of the United States shall consult with the Government of Latvia pursuant to Article 19 of the Extradition Treaty.”

On 30 July 2013 the applicant’s lawyer, S.V., submitted to the Cabinet of Ministers the matters for consideration when deciding on the applicant’s extradition. He stated, inter alia, the following:

“...the absence of guarantees about [the applicant’s] serving a sentence in the Republic of Latvia ... the service of a sentence thousands of kilometres away would constitute an identical violation as in the case of [Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, 25 July 2013].”

On 6 August 2013 the Cabinet of Ministers decided that the applicant would be extradited to the United States.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in 1965 and lives in Sarajevo, Bosnia and Herzegovina. At the time of the introduction of his application, the applicant served a prison sentence in Croatia.

During June and July 2008 the Istria Police Department (Policijska uprava istarska; hereafter: “the police”) received several complaints concerning the use of counterfeit euro banknotes in Istria.

The video surveillance recordings made in one of the shops where the counterfeit currency was used revealed that a certain C.M. had paid using several counterfeit 100 euro notes.

According to a police report dated 21 July 2008, further unspecified investigative police work identified the applicant as the person who had supplied a total of 3,000 counterfeit euros to C.M. The report also claimed that the applicant was expected to return from Bosnia and Herzegovina to Croatia for the purpose of uttering a further 20,000 counterfeit euros and, if that proved to be successful, he would bring a further 200,000 counterfeit euros with a view to uttering them in Istria.

Acting on the evidence presented in the police report (see paragraph 9 above), on 21 July 2008 the Pula County State Attorney’s Office (Županijsko državno odvjetništvo u Puli) asked an investigating judge from the Pula County Court (Županijski sud u Puli) to authorise the use of special investigative measures in respect of the applicant, namely tapping his telephone, covertly monitoring him using undercover agents, and conducting a simulated purchase operation.

The investigating judge granted the request and on the same day issued an order for the use of special investigative measures. The relevant part of the statement of grounds reads:

“The request of the [Pula County State Attorney’s Office] is well-founded.

As the materials and information available to the police suggest that there is probably cause to believe that Zoran Grba, a national of Bosnia and Herzegovina, engages in the offence of currency counterfeiting under Article 274 §§ 1 and 2 of the Criminal Code, and given that, in the view of the investigating judge, the investigation cannot be efficiently carried out by other means, or would be extremely difficult, the well-founded request of the [Pula County State Attorney’s Office] should be granted and the requested measures are hereby ordered with regard to Zoran Grba as indicated in the operative part of this order. These measures will be implemented by the police between 21 July and 21 November 2008.”

On 6 August 2008 the Pula County State Attorney’s Office informed the investigating judge that the applicant also used another telephone number, and requested an authorisation for the tapping thereof.

On the same day the investigating judge granted the request, finding that there were no new facts or circumstances suggesting that the use of the special investigative measures in respect of the applicant should be discontinued.

Meanwhile, on the same day, the applicant met an undercover police agent who purchased one counterfeit 100 euro note from him.

In the ensuing period several further meetings and contacts between the applicant and the undercover agent took place. On 12 August 2008 the undercover agent purchased 149 counterfeit 100 euro notes from the applicant, and on 17 October 2008 the applicant sold him a further sixtyfour counterfeit 100 euro notes.

On 17 November 2008 the police informed the Pula County State Attorney’s Office of the actions taken through applying special investigative measures. The police stated that the applicant’s arrest had initially been planned for 17 November 2008, when he was supposed to come to Croatia for the purpose of selling further counterfeit euro banknotes to an undercover agent but he had postponed that meeting. The police therefore requested an extension of the use of special investigative measures in order to identify and arrest all those involved in the uttering of the counterfeit banknotes and to collect evidence concerning the offence at issue.

On 18 November 2008 the Pula County State Attorney’s Office made a fresh request for the use of special investigative measures in respect of the applicant.

The investigating judge granted the request and on the same day issued an order extending the use of special investigative measures for a further month. The judge found that the grounds set out in his order of 21 July 2008 remained valid (see paragraph 11 above) and that the information provided by the police suggested that it was necessary to extend the use of special investigative measures in respect of the applicant for a further month.

On 19 November 2008 the Pula County State Attorney’s Office asked for corrections to be made to the order in relation to an incorrect phone number in its request of 18 November 2008 and also in respect of the omission of another phone number used by the applicant. The investigating judge granted this request on 21 November 2008.

On 22 November 2008 the applicant, accompanied by his brother D.S., met the undercover agent in Solin. On that occasion he sold him 600 counterfeit 100 euro notes for 21,000 euros (EUR). Following the illicit transaction, the applicant and D.S. were arrested by the police.

After the arrest the applicant and his car were searched. The police found and seized EUR 21,000 in cash.

On 23 November 2008 the police lodged a criminal complaint with the Pazin Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Pazinu) against the applicant on charges of currency counterfeiting. No criminal complaint was lodged against D.S.

On the same day the applicant was brought before an investigating judge of the Pula County Court for questioning, during which he remained silent. The investigating judge ordered his remand in custody.

The investigating judge also heard D.S. as a witness but he invoked his testimonial privilege as the applicant’s brother and gave no evidence.

Following a request for the opening of a judicial investigation in respect of the applicant, on 26 November 2008 the investigating judge questioned the applicant, but the applicant again remained silent. On the same day, the investigating judge opened an investigation in respect of the applicant in connection with suspected currency counterfeiting relating to the four occasions on which he had sold the counterfeit banknotes to the undercover agents.

In the course of the investigation, the investigating judge obtained an expert report stating that the 600 banknotes of 100 euro which the applicant had sold to the undercover agents were counterfeit. The judge also decided that the undercover police agents would be questioned under the pseudonyms E.K. and A.B. via video link and with distorted images and sound.

On 23 January 2009 the investigating judge questioned the undercover agent E.K. The applicant’s lawyer was present during the questioning.

In his statement E.K. said that his first contact with the applicant had occurred sometime in late July 2008, when they had spoken on the phone. According to E.K., he had not told the applicant the reason for calling him, but at the time the applicant had been in Sarajevo so they had been unable to meet. E.K. also explained that following this initial contact, he had met the applicant in a restaurant in Duga Resa at the beginning of August 2008. On that occasion they had started talking about business. The applicant had asked him what he was interested in and E.K. had replied that he had heard that the applicant was offering some good “papers”. The applicant had replied that it was true and asked E.K. what he was really interested in and E.K. had repeated that he had heard that the applicant was offering good “papers”. However, E.K. was no longer able to recall the further details of this conversation with the applicant. E.K. explained that during this first meeting the applicant had sold him a 100 euro note for 300 Croatian kunas (HRK) (approximately EUR 40), which E.K. had accepted. According to E.K., the applicant had also said that if E.K. wished, they could arrange a further purchase of a larger quantity of such banknotes.

E.K. stated that eight to ten days following his first meeting with the applicant, they had met again in a car park near Zagreb. On that occasion the applicant had offered E.K. the opportunity to buy a further 15,000 counterfeit euros. E.K. had accepted the offer and had paid EUR 6,000 for the counterfeit euros. E.K. testified that a further meeting with the applicant had taken place in Odra after a phone call from the applicant. On that occasion the applicant had asked E.K. whether he knew anybody who would be interested in the purchase of larger quantities of counterfeit currency and E.K. had replied that he had a friend ‒ in actual fact another undercover agent, A.B. ‒ who would be interested. According to E.K., the next meeting with the applicant had taken place some time in midOctober 2008 in a restaurant in Lupoglav. E.K. explained that on that occasion he had been accompanied by the second undercover agent, A.B. On that occasion E.K. had bought 6,500 counterfeit euros (it later turned out that the amount was in fact 6,400 euros) from the applicant for EUR 2,500. Following this exchange they had been in contact by phone but they had not met.

The investigating judge also questioned the undercover agent A.B. in the presence of the applicant’s lawyer.

During his questioning A.B. described the circumstances in which he had first met the applicant in the restaurant in Lupoglav in October 2008 (see paragraph 29 above). According to A.B., the applicant had asked him whether or not he wanted to buy counterfeit currency. A.B. had then expressed interest in doing so and the applicant had stated that he could supply 50,000 counterfeit euros, which he would be prepared to bring to Split. They had then agreed to stay in touch and exchanged phone numbers. A.B. also stated that the applicant had called him in early November 2008 and asked him whether he wanted to buy the counterfeit euros. Afterwards they had had several telephone conversations until the applicant had finally called A.B. and offered him 60,000 counterfeit euros for the price of EUR 21,000. A.B. had accepted that and they had met in a shopping centre in Solin. The illicit exchange had then taken place and the applicant had afterwards been arrested.

After completion of the investigation, the investigating judge forwarded the case file to the Pazin Municipal State Attorney’s Office for further examination and a decision.

On 17 February 2009 the Pazin Municipal State Attorney’s Office indicted the applicant in the Pazin Municipal Court (Općinski sud u Pazinu) on charges of currency counterfeiting in connection with the four occasions on which he had sold counterfeit euros to the undercover police agents (see paragraphs 14-15 and 20 above).

A three-judge panel of the Pazin Municipal Court confirmed the indictment on 10 March 2009 and sent the case for trial.

At a hearing on 27 March 2009 the applicant, represented by a lawyer, pleaded not guilty with regard to the first three instances of the alleged uttering of counterfeit notes (see paragraphs 14-15 above), whereas he considered himself “responsible” for the transaction on 22 November 2008 because he had “given in to the inducement” by the police.

At the same hearing the Pazin Municipal Court questioned the undercover police agents E.K. and A.B. The undercover agent E.K. stated that he could no longer say who had initiated a meeting specifically for the purchase of the counterfeit currency and he was unable to answer the question whether the applicant should have been arrested as soon as he had sold the first counterfeit 100 euro note to him. E.K. was also unable to say whether he would have been authorised to arrest the applicant. The undercover agent A.B. reiterated the statement he had given to the investigating judge.

Following the questioning of the witnesses, the trial bench examined the secret surveillance recordings and asked the police to inform them whether the euros paid for the counterfeit notes at the first three meetings (see paragraphs 14-15 above) had been traced and confiscated.

On 6 April 2009 the police replied that they had neither traced the money which had been paid for the purchase of the counterfeits nor confiscated it from the applicant on the first three occasions.

A further hearing was held on 16 April 2009, at which the trial bench commissioned a psychiatric expert report concerning the applicant’s mental condition at the moment of the commission of the offences.

In the course of his examination by a psychiatrist the applicant explained that he had had serious financial difficulties and that he had needed money urgently. He also stated that he had never before broken the law and had never committed an offence. In summer 2008 an undercover police agent had started contacting him, asking him whether he could supply counterfeit euros. The applicant believed that one of the people in Croatia who owed him money must have given his phone number to the police. As the agent had been very persistent in his calls (he had called him at least fifty times), the applicant had agreed to his request. The applicant had not believed that he was doing anything bad by simply delivering counterfeit money. He explained that he would have never agreed to do it had he not been pressurised by the undercover agent.

In his report dated 21 April 2009 the expert witness found that the applicant had had full mental capacity at the time of commission of the offences.

On 13 May 2009 a further hearing was held before the Pazin Municipal Court at which the expert witness responded to questions concerning his report.

At the same hearing the applicant was questioned but decided to remain silent and not to give any evidence. Following the applicant’s questioning, the trial bench concluded the trial proceedings and heard the parties’ closing arguments. The applicant contended that he had been incited by the police to commit the offences at issue. He argued that it had been the undercover agents who had contacted him first and that their evidence concerning the circumstances of their various contacts had been both incomplete and contradictory. He pointed out that there no audio recordings of his meetings with the undercover agents and it was unclear why had they not arrested him before 22 November 2008 if he had committed an offence on the first three occasions, as suggested in the indictment.

On 13 May 2009 the Pazin Municipal Court found the applicant guilty as charged and sentenced him to five years and six months’ imprisonment. It also confiscated HRK 300 (approximately EUR 40) and EUR 8,500 from the applicant and ordered his expulsion from Croatia. The Pazin Municipal Court held that the four occasions on which the applicant had sold counterfeit currency to the undercover agents should be classified as a repeated offence of uttering counterfeit currency under Article 274 § 1 of the Criminal Code. When sentencing the applicant, the Pazin Municipal Court explained that the applicant’s persistence in uttering counterfeit currency on four occasions, as well the quantity of counterfeit banknotes uttered (81,400 counterfeit euros in total), constituted particularly aggravating factors. With regard to the applicant’s plea of entrapment, the Pazin Municipal Court merely noted that it had no reason to doubt the statements provided by the undercover agents.

The applicant challenged the first-instance judgment before the Pula County Court arguing, in particular, that the circumstances of his entrapment had not been properly examined.

On 20 October 2009 the Pula County Court quashed the firstinstance judgment and remitted the case for re-examination. It found that the first-instance judgment had been based solely on the undercover agents’ statements about their conversations with the applicant, which was contrary to Article 180 of the Code of Criminal Procedure.

In the resumed proceedings the Pazin Municipal Court excluded from the case file as unlawful evidence all the undercover agents’ statements about their conversations with the applicant.

At a hearing on 18 January 2010 the Pazin Municipal Court again questioned the undercover agents E.K. and A.B.

In his statement E.K. explained that he could not judge whether he had contacted the applicant more frequently than the applicant had contacted him. He was also unable to recall the details of his conversation with the applicant when they had first talked over the phone. E.K. also explained that a simulated purchase operation was sometimes carried out just once and sometimes on several occasions. In the case at issue, he had been instructed by his superiors to conduct several such simulated purchases. Moreover, it was for his superior and not him to determine the ultimate aim of the simulated purchase operation. In any case, the aim of such a police operation was to eradicate currency counterfeiting. E.K. was unable to recall who had initiated the meeting in Lupoglav in mid-October 2008 when he had introduced the applicant to the second undercover agent A.B. Nor could he say who had initiated the other meetings. With regard to his first meeting with the applicant, he could not say whether the applicant had had only one 100 euro counterfeit note in his possession or more than one. E.K. answered that it was “[the applicant’s] own business”.

In his statement A.B. explained that his meeting in Solin had taken place at the applicant’s initiative and that it was the applicant who had contacted him more frequently than vice versa. A.B. further stated that it was his superior who had the authority to decide whether the simulated purchase would be organised just once or on several occasions.

Following the questioning of the undercover agents, the defence asked that C.M. ‒ who was initially identified as the person to whom the applicant had allegedly first supplied the counterfeit euros (see paragraphs 79 above) ‒ be questioned at the trial. The trial bench of the Pazin Municipal Court dismissed the request by the defence as irrelevant and adjourned the hearing in order to examine the recordings of the applicant’s secret surveillance.

On 30 March and 27 April 2010 the Pazin Municipal Court examined the recordings of the applicant’s communications and meetings with the undercover agents. It found that there had been eight unsuccessful attempts on the part of the undercover agents to contact the applicant.

At a hearing on 27 April 2010 the Pazin Municipal Court heard the parties’ closing arguments. The applicant argued in particular that the police had abused their powers in not arresting him after the first illicit transfer of counterfeit euros and had instead incited him to commit further offences by arranging purchases of larger quantities of counterfeit euros. He also contended that there had never been a reasonable suspicion of his having committed an offence which could have justified the investigating judge’s decision to authorise the use of undercover investigative measures.

On the same day the Pazin Municipal Court found the applicant guilty as charged and sentenced him to five years and six months’ imprisonment. It also confiscated HRK 300 (approximately EUR 40) and EUR 8,500 from the applicant and ordered his expulsion from Croatia. When sentencing the applicant, the Pazin Municipal Court reiterated its previous findings (see paragraph 44 above).

With regard to the applicant’s plea of entrapment, the Pazin Municipal Court observed:

“In the case at issue, examination of the audio recordings of the phone taps confirmed the circumstances surrounding the communication between the undercover agents and the accused, in particular the intensity of the telephone communications. Taking note of the recorded statements of the undercover agents during their communications [with the applicant], it was established that the purpose of the communications was [organising] a meeting with the accused in order to effectuate a simulated purchase.

This court considers that it cannot be said that the undercover agents acted improperly in the sense that by their actions they allowed the accused to develop his criminal activity [or] in any manner incited him to commit an offence.

Neither the questioning of the undercover agents nor any other [evidence adduced] suggests that the undercover agents incited the accused to commit an offence in the sense that they offered him some reward or brought him presents or such like.

It is true [as was established during the proceedings] that, for instance, between 12 and 16 October 2008 the undercover agent tried to contact the accused eight times on his mobile phone, but this court considers that this was not prohibited nor did it incite the accused to commit criminal acts. Those were attempts to contact the accused in the period which was ‘covered’ by the [investigating judge’s order]. It should be also taken into account that in the period at issue there had already been communication between the accused and the undercover agent.”

The applicant challenged the first-instance judgment by lodging an appeal before the Pula County Court. He argued, in particular, that the orders for the use of special investigative measures had not been adequately reasoned, as required under the Code of Criminal Procedure. He also contended that there had been no reason to continue with the use of simulated purchases and the undercover agents’ activities after the first illicit transfer of counterfeit euros in August 2008. All further events had constituted entrapment intended to extend the scope of his criminal activity, which eventually resulted in a more severe sentence. The applicant claimed that such measures could have been justified by the necessity to arrest further individuals involved in the offence, but no activity in that respect had been undertaken in his case.

On 24 September 2010 the Pula County Court dismissed the applicant’s appeal and upheld the first-instance judgment. It held that the investigating judge’s orders for the use of special investigative measures had been properly reasoned as required under the Code of Criminal Procedure. With regard to the plea of entrapment, the Pula County Court observed:

“... [The investigating judge] ordered that the [special investigative] measures be implemented between 21 July and 21 November 2008, namely over a period of four months. The investigating judge’s order ... of 18 November 2008 shows that the use of [special investigative] measures was extended for a month from 21 November to 21 December 2008. It is apparent from the order that, in response to an application by the State Attorney’s Office, the investigating judge extended the use of [special investigative] measures for appropriate reasons. It [also]probably cause to believe that the accused had uttered counterfeit euros, which suggested the commission of a serious criminal offence (currency counterfeiting). Taking into account the nature of such an offence and the fact that the use of special investigative measures was producing certain results, there were relevant reasons for extending the use of [special investigative] measures under Article 180 of the Code of Criminal Procedure. It cannot therefore be said that the conduct of the undercover agents broadened the extent of the criminal activity of the accused.

It should be noted that it cannot be claimed that the use of special investigative measures under Article 180 § 1(4) and (5) of the Code of Criminal Procedure can be considered as an incitement to commit a criminal offence. The undercover agent E.K. contacted the accused only after the use of special investigative measures had been ordered and there is therefore no unlawfulness in his conduct. Furthermore, the fact that E.K. first contacted the accused without telling him the reason for the contact, as was established by the first-instance court from the statement of E.K., and the fact that the first meeting took place almost a month later (on 6 August 2008) ‒ when the undercover agent in Duga Resa bought one 100 euro counterfeit note from the accused for the amount of HRK 300 ‒ cannot be considered as an incitement but was a tactical action aimed at gaining the confidence of the accused and further uttering of counterfeit euros. The fact that the undercover agent succeeded in his task is selfevident, since the accused continued to sell him larger quantities of counterfeit euros for real euros until he was arrested.”

On 6 November 2010 the applicant filed a request for extraordinary review of a final judgment before the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the findings of the Pula County Court. He contended that the Pula County Court had failed to provide adequate reasoning for its findings concerning the incitement. Specifically, it had not thoroughly examined the circumstances of the applicant’s first contact with the undercover agent when the first instance of incitement had occurred. Furthermore, the Pula County Court had not taken into account the fact that the majority of the contacts with the applicant had been initiated by the undercover agents, and it had not analysed the substance of their discussions, even though they had been duly recorded, as a result of the applicant’s phone having been tapped. In this connection the applicant pointed out relevant parts of the transcript of the phone taps, in particular the part where the undercover agent stated: “Come on, you must definitely come. Don’t you know, ok, we are serious people ...”; or where the applicant stated “I will not bring [it] and that’s it”, after which the undercover agent started inciting him to a criminal act. The applicant also contended that the investigating judge’s orders for the use of special investigative measures had not been properly reasoned, as required under the Code of Criminal Procedure.

On 5 April 2011 the Supreme Court dismissed the applicant’s request for extraordinary review of a final judgment, endorsing the reasoning of the lower courts concerning the applicant’s plea of incitement. It found that there was nothing in the conduct of the undercover agents suggesting incitement. It also considered that there had been sufficient basis for the use of secret surveillance and that the orders of the investigating judge had been issued in accordance with the relevant provisions of the Code of Criminal Procedure.

On 24 June 2011 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating the arguments he had presented before the lower courts. He pointed out in particular that the use of special investigative measures had been authorised contrary to the relevant domestic law as the investigating judge’s orders had not been properly reasoned. In his view, this had infringed his right to respect for his private life and the confidentiality of his correspondence guaranteed under Articles 35 and 36 of the Constitution. The applicant also contended that he had been incited to commit an offence by the undercover agents and that the lower courts had not properly examined his plea of entrapment.

On 8 December 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the decision of the Supreme Court concerned neither a determination of his rights and obligations nor a criminal charge against him.

The decision of the Constitutional Court was served on the applicant’s representative on 5 January 2012.