FOURTH SECTION
CASE OF NIKOLOV v. AUSTRIA
(Application no. 48105/16)
 
 
 
 
JUDGMENT
 
STRASBOURG
24 January 2023
 
 
 
 
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Nikolov v. Austria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
 Armen Harutyunyan, President,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins, judges,
and Veronika Kotek, Acting Deputy Section Registrar,
Having regard to:
the application (no. 48105/16) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 August 2016 by a Bulgarian national, Mr Valentin Petrov Nikolov (“the applicant”), who was born in 1967 and at the time of the application was detained in Vienna, and who was represented by Mr R. Kier, a lawyer practising in Vienna;
the decision to give notice of the application to the Austrian Government (“the Government”), represented by their Agent, Mr H. Tichy, Ambassador, Head of the International Law Department at the Federal Ministry for European and International Affairs;
the information given to the Bulgarian Government regarding their right to intervene in the proceedings pursuant to Article 36 § 1 of the Convention and the fact that the Bulgarian Government did not express a wish to exercise that right;
the parties’ observations;
Having deliberated in private on 13 December 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. On 27 August 2015 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) convicted the applicant, a Bulgarian national, of drug offences. It found that he had been incited to commit the offences by a person who was a police informant (als Informant für die Polizei tätig) and, as a consequence, reduced his prison sentence by three months. During the oral hearing, the regional court had dismissed the applicant’s request for the whereabouts of the police informant (Vertrauensperson der Kriminalpolizei), T., to be ascertained and for T. to be called to give evidence, reasoning that the issue on which evidence should be taken (Beweisthema) was evident. In a plea of nullity to the Supreme Court the applicant relied on the Court’s case-law and argued that mitigation of sentence was not sufficient to remedy unlawful State incitement. On 26 January 2016 the Supreme Court rejected the plea of nullity in its parts relevant to the application on admissibility grounds, arguing in substance that during the proceedings before the regional court there had been no indication of unlawful State incitement. 2. In his application to the Court the applicant complained that he had been incited to commit a criminal offence, in breach of his right to a fair trial under Article 6 § 1 of the Convention, and that the courts had not sufficiently examined whether T. had collaborated with the justice system.

Outcome for Article 6: violation