Individual Application

The Facts

A report was issued by the police officers to the effect that a grocery store was selling alcoholic beverages after 10:00 p.m. despite the general ban introduced through a law. In the report, it was noted that a police officer in civilian clothes, who acted as a customer doing shopping, purchased alcoholic beverage at the store, and the misdemeanour was thereby found established.

The Tobacco and Alcohol Market Regulatory Authority (“the Authority”) imposed an administrative fine on the applicant, owner of the store, for having sold alcoholic beverages at night time. The applicant’s challenges to the effect that the collection of evidence through the method of undercover investigator had been unlawful were dismissed by the incumbent magistrate judge.  

The Applicant’s Allegations                                                  

The applicant claimed that his right to a fair hearing had been violated, stating that the authorities had failed to take into consideration the police officers’ having acted as an undercover investigator.

The Court’s Assessment

Pursuant to the relevant law, the retail sale of alcoholic beverages between the hours of 10.00 p.m. and 06.00 a.m. is forbidden.

In the present case, a police officer purchased an alcoholic beverage from the applicant’s store, which he visited as a customer, late in the evening in return for money with pre-determined serial numbers. He subsequently showed his identity card in his capacity as a police officer and issued a report on the basis of which the Authority subsequently imposed an administrative fine on the applicant.

In the Court’s view, in the absence of any suspicion with respect to an alleged offence that has been previously committed, it is not acceptable for the State to pave the way, through its agents, for the commission of an offence by those who are a potential offender and thereby to incite persons to commit an offence. Besides, even in case of any suspicion with respect to an allegedly committed offence, methods of special investigation may be employed only on a legal basis, which envisages that these methods may be applied in exceptional circumstances and within certain boundaries and which also affords adequate safeguards to those concerned.  

It has been observed that in the present case, the police officer did not confine himself to investigate the act constituting a misdemeanour, acting in a passive manner during the commission of the misdemeanour, but played an active role in its commission. Moreover, it could not be concretely demonstrated that there was a suspicion, before the impugned interference by the police officer, as to the selling of alcoholic beverages at the applicant’s store during the hours when it was indeed forbidden to do so. Therefore, it has been concluded that the applicant was induced to commit a misdemeanour by the public officer.

Despite the clear challenges that were raised by the applicant on this matter in his petition, the inferior courts failed to make any assessment in this respect. The magistrate judge dealing with the applicant’s challenges relied on the report issued by the police officer without discussing whether the impugned interference was compatible with the constitutional safeguards. 

Besides, the Misdemeanours Act no. 5326 embodies no arrangement allowing for the employment of the undercover investigator procedure. Nor does it contain any implication that enables the application of the provisions of the Code of Criminal Procedure no. 5271. 

It has been accordingly concluded that despite the significance -with regard to public interest- of, and the difficulties inherent in, the duty of investigating offences and uncovering misdemeanours, the applicant was deprived of a fair hearing as required by the Constitution under the particular circumstances of the present case, when interpreted in line with the principle of state of law.

Consequently, the Court has found a violation of the right to a fair hearing inherent in the right to a fair trial safeguarded by Article 36 of the Constitution.