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ЕВРОПСКИ СУД ЗА ЉУДСКА ПРАВА
ТРЕЋЕ ОДЕЉЕЊЕ
ПРЕДМЕТ РАДУК против СРБИЈЕ
(Представка број 13696/23)
ПРЕСУДА
СТРАЗБУР
6. мај 2025.
Ова пресуда је правноснажна, али може бити подложна редакцијским изменама.
У предмету Радук против Србије,
Европски суд за људска права (Треће одељење), на заседању Одбора у саставу:
Darian Pavli, председник,
Úna Ní Raifeartaigh,
Матеја Ђуровић , судије ,
и Olga Chernishova, заменица секретара Одељења
Имајући у виду: представку (број 13696/23) против Србије поднету Суду на основу члана 34. Конвенције за заштиту људских права и основних слобода (у даљем тексту „Конвенција“) 15. марта 2023. године од стране држављанина Србије, господина Петра Радука (у даљем тексту „подносилац“), рођеног 1962. године, који живи у Зрењанину, којег пред Судом заступа госпођа Ј. Пирић, адвокатица која ради у истом граду;
одлуку да се Влада Републике Србије (у даљем тексту „Влада“), коју заступа њихова заступница, госпођа З. Јадријевић Младар, обавести о притужби у вези са правом подносиоца на правично суђење, као и да се остатак представке прогласи неприхватљивим; запажања странака;
Након већања на затвореној седници одржаној 1. априла 2025. године,
Доноси следећу пресуду, која је усвојена тог дана:
ПРЕДМЕТ СЛУЧАЈА
ОЦЕНА СУДА
ПРИМЕНА ЧЛАНА 41. КОНВЕНЦИЈЕ
ИЗ ОВИХ РАЗЛОГА, СУД, ЈЕДНОГЛАСНО,
Састављено на енглеском језику и објављено у писаном облику 6. маја 2025. године, у складу са правилом 77. ст. 2. и 3. Пословника о раду Суда.
|
Olga Chernishova |
Darian Pavli |
|
Заменица секретара |
Председник |
____________
Превод пресуде преузет је са сајта Заступниак Србије пред ЕСЉП
THIRD SECTION
CASE OF RADUK v. SERBIA
(Application no. 13696/23)
JUDGMENT
STRASBOURG
6 May 2025
This judgment is final but it may be subject to editorial revision.
In the case of Raduk v. Serbia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Úna Ní Raifeartaigh,
Mateja Đurović, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 13696/23) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 March 2023 by a Serbian national, Mr Petar Raduk (“the applicant”), who was born in 1962, lives in Zrenjanin and was represented by Ms J. Pirić, a lawyer practising in the same town;
the decision to give notice of the complaint concerning the applicant’s right to a fair hearing to the Serbian Government (“the Government”), represented by their Agent, Ms Z. Jadrijević Mladar, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 1 April 2025,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the alleged police entrapment of the applicant and his conviction for bribery, in breach of Article 6 § 1 of the Convention.
2. The applicant was a customs officer at the relevant time.
3. On 2 September 2015 G.Ć., a local businessman engaged in importing used cars into Serbia, approached the Zrenjanin Police Department and lodged a criminal complaint against the applicant for bribery. In this complaint G.Ć. stated that he had heard from a certain Ž.B., who was also involved in the business of importing used cars, that the applicant could be bribed to “resolve issues” related to various customs fees and procedures. Specifically, the applicant was purportedly willing to refrain from initiating misdemeanour proceedings during the importation of used cars, waive customs duties and VAT on imported vehicles, and dismiss existing misdemeanour charges against car importers. G.Ć. later testified to the Public Prosecutor that he was appalled by this information. Instead of offering a bribe, he thus decided to report the matter to the authorities.
4. On the same day, based on reasonable suspicion of bribery, the investigating judge authorised two months of secret surveillance of the applicant in accordance with Articles 166-167 and 171-172 of the Serbian Code of Criminal Procedure (CCP).
5. During this period, the police intercepted text messages between the applicant and Ž.B. and recorded their phone conversations. During the same timeframe, the applicant met with G.Ć. on two occasions. In the course of the first meeting, initiated by G.Ć., the latter told the applicant that he had heard from Ž.B. that the applicant could resolve his issues and inquired about the cost. The applicant initially denied engaging in such activities but eventually agreed to a payment of some 5,000 euros (EUR) in several instalments after G.Ć.’s repeated requests to this effect. The meeting was secretly video recorded by the police with G.Ć.’s knowledge. During the second meeting, G.Ć., equipped with an audio recording device provided by the police, handed the applicant marked banknotes, which had also been supplied by the police, at which point the applicant was arrested.
6. On 23 September 2019 the Zrenjanin High Court convicted the applicant of accepting a bribe and sentenced him to one year of house arrest. In the same judgment, the court found that Ž.B. had acted as the applicant’s intermediary in approaching G.Ć. and convicted him as an accomplice, sentencing him to six months of house arrest. The conviction was based on various pieces of evidence, including audio recordings and intercepted text messages between G.Ć. and Ž.B., video recordings of the meetings between the applicant and G.Ć., and G.Ć.’s witness testimony. During the criminal proceedings, the applicant argued that his prosecution resulted from police entrapment, specifically claiming that G.Ć. had acted as a police informant and engaged in a “simulated purchase operation” without judicial authorisation required by the CCP. However, the court dismissed this argument. Specifically, the court in question found that it was “clear and unequivocal that the witness [G.Ć.] was not designated as an undercover agent, nor was a simulated legal transaction conducted in this specific case, as his engagement as an undercover agent was not ordered in accordance with Articles 184 and 185 of the ... [CCP] ..., nor was the execution of simulated legal transactions ordered under Articles 174 and 175 of the CCP”. Subsequently, the Novi Sad Court of Appeal increased the applicant’s sentence to two years of imprisonment, followed by a three-year ban from working as a customs officer, while Ž.B.’s sentence was raised to nine months of house arrest. This judgment was later upheld by the Supreme Court of Cassation. On 12 October 2022 the Constitutional Court dismissed the applicant’s constitutional appeal. This decision was served on the applicant on 30 November 2022.
7. Relying on Article 6 of the Convention, the applicant complained that his conviction had been unfair because it had been based on evidence obtained through police entrapment and because the domestic courts had inadequately addressed his plea of entrapment.
THE COURT’S ASSESSMENT
8. The Court considers that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
9. The general principles concerning the issue of entrapment are set out in the case of Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 49-61, ECHR 2008. Notably, the proceedings against an applicant would be deprived of the fairness required by Article 6 of the Convention if the actions of the State authorities had the effect of inciting the applicant to commit the offence for which he or she was convicted and the domestic courts did not address appropriately the allegations of incitement (see Matanović v. Croatia, no. 2742/12, § 135, 4 April 2017).
10. Turning to the present case, the Court must first assess under the substantive test, whether the authorities had sufficient justification for initiating a covert operation. Although there is no evidence that the applicant had previously engaged in any criminal conduct, particularly corruption, this fact, when weighed against the other circumstances of the case, cannot be seen as indicative of bad faith on the part of the police in deciding to carry out an undercover operation against the applicant (see Tchokhonelidze v. Georgia, no. 31536/07, § 48, 28 June 2018).
11. The Court furthermore notes the findings of the domestic courts that the applicant, through an intermediary, Ž.B., conveyed to G.Ć. his willingness to accept a bribe. However, the Court also observes that G.Ć., before any direct contact with the applicant, had already approached the police. His criminal complaint was based solely on indirect information received from a third party, Ž.B., rather than any direct communication with the applicant (see paragraph 3 above). Also, the first meeting between the applicant and G.Ć. was initiated by G.Ć. after he had contacted the police, during which meeting he offered a bribe, and the interaction was recorded by the police with G.Ć.’s knowledge (contrast Tchokhonelidze, cited above, § 49). The applicant initially refused but eventually accepted to take the bribe after G.Ć.’s repeated requests to that effect (see paragraph 5 above). This indicates that the applicant was subjected to prompting by G.Ć. to commit a criminal act (see Ramanauskas, cited above, § 67, and Tchokhonelidze, cited above, § 44). In addition to that, the applicant’s conviction largely relied on recordings made by the police during the two meetings in which G.Ć. acted under police instructions. It is evident that from the applicant’s first interaction with G.Ć. until his arrest, G.Ć. acted in accordance with police directives and actively encouraged the applicant to accept the bribe. However, considering the broader context—particularly the domestic courts’ finding that the applicant had previously approached G.Ć. through Ž.B.—the Court cannot conclude, on this basis alone, that the applicant was subjected to police incitement. Consequently, the existence of a clear and foreseeable legal framework for authorising and conducting undercover operations, as well as the existence of adequate supervision of such operations is of particular significance. A lack of procedural safeguards in the ordering of an undercover operation would generate a risk of arbitrariness and police entrapment (see Tchokhonelidze, cited above, § 50, and Nosko and Nefedov v. Russia, nos. 5753/09 and 11789/10, § 64, 30 October 2014).
12. Concerning the said procedural safeguards, the Court observes that the CCP provides for a clear and foreseeable route for the authorisation, implementation and supervision of special investigative measures, such as simulated purchases (Articles 174-177), and engagement of an undercover agent (Articles 183-187), both of which require mandatory judicial authorisation. In the present case, however, that procedure was obviously not followed. Specifically, G.Ć. was equipped with a recording device and banknotes provided by the police, with their serial numbers duly recorded for use as evidence, all without the requisite decision issued by a judge or a court of law (see paragraph 5 above). Regarding the subsequent judicial review of the contested operation, the applicant raised these procedural deficiencies during the criminal proceedings. However, while the domestic courts acknowledged the lack of judicial authorisation for the special investigative measures, they nonetheless dismissed the applicant’s argument, concluding that, in the absence of such authorisation, no special investigative measures had been carried out (see paragraph 6 above). The domestic courts thus failed to address appropriately the allegations of police entrapment. The fact that the police provided G.Ć. with a recording device and banknotes without judicial authorisation indicates a procedural deficiency in the covert operation itself, rather than proving that no covert operation had taken place at all. In the Court’s view, this lack of adequate procedural safeguards in the proceedings tainted the legitimacy of the entire undercover operation from the outset and exposed the applicant to the risk of police entrapment (see Nosko and Nefedov, cited above, §§ 64-65).
13. The foregoing considerations are sufficient to enable the Court to conclude that the procedural failures by authorities in the applicant’s case, taken cumulatively, breached the applicant’s right to a fair trial. There has accordingly been a violation of Article 6 § 1 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
14. The applicant claimed EUR 20,000 in respect of non-pecuniary damage.
15. The Government contested this claim.
16. The Court observes that Article 485 § 1(3) and Article 492 of the Serbian CCP, as currently in force, provide for, inter alia, a defendant’s right to request a retrial domestically if the Court finds a violation of his or her rights as guaranteed by the Convention (see Stanimirović v. Serbia, no. 26088/06, § 59, 18 October 2011). The Court therefore considers that, in the specific circumstances of the present case, the finding of a violation of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.
17. The applicant did not claim any costs or expenses. Accordingly, the Court makes no award under this head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 6 May 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli
Deputy Registrar President
baza unakrsnih veza