NIKOLOV v. AUSTRIA

 
Communicated on 29 May 2019
 
FIFTH SECTION
Application no. 48105/16
Valentin Petrov NIKOLOV
against Austria
lodged on 12 August 2016
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s conviction of drug offences by the Vienna Regional Criminal Court (Landesgericht für Strafsachen) of 27 August 2015. The court found that the applicant had been incited by a police informant (Vertrauensperson) to commit the offence and, as a consequence, mitigated his sentence by three months. The applicant claims that the informant’s actions were imputable to the state, a fact which had not sufficiently been examined in the course of the proceedings. He claimed that pursuant to the judgment in the case Furcht v. Germany (no. 54648/09, § 68-71, 23 October 2014), the evidence obtained though the allegedly unlawful incitement should have been excluded from the trial. His conviction following the entrapment by State authorities had thus violated Article 6 § 1 of the Convention.
QUESTIONS tO THE PARTIES
1.  Has the applicant exhausted domestic remedies in relation to his complaint that the evidence obtained through the alleged entrapment was not raised before the first instance court, but for the first time before the Supreme Court (compare Batista Laborde v. Austria (dec.), no. 41767/09, § 37, 25 February 2016)? Or was it sufficient for the purposes of the rule of having to exhaust domestic remedies that the applicant based his plea of nullity (Nichtigkeitsbeschwerde) to the Supreme Court on the case Furcht (cited above)?
2.  Did the applicant exhaust domestic remedies in respect of the request to hear the police informant T.T. as a witness, as he has not appealed against the dismissal of the respective request? Would it have been relevant to question T.T. as a witness in order to establish whether his actions were imputable to the State?
3.  Having regard, in particular, to the Court’s judgment in the case of Furcht v. Germany (cited above) and the cases cited therein, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 of the Convention?
(a)  In particular, was he (directly or indirectly) incited by state authorities to commit the drug offences he was convicted of? If so, did he have a fair trial in view of the fact that evidence obtained by entrapment was used in the proceedings against him?
(b)  Was the connection between the police informant and the police sufficiently examined in the proceedings; in particular, whether T.T.’s actions were imputable to the State and what his precise role was in the undercover operation? Did the dismissal of the applicant’s request to examine the police informant as a witness comply with the guarantees provided for in Article 6 of the Convention?
(c)  What is the procedure to be followed under domestic law for the authorisation and supervision of the undercover operation? Is there any information available on the procedure used in the applicant’s case?

Full & Egal Universal Law Academy