CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 octobre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 12127/86                       by J.A.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 15 October 1987 the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 2 April 1986 by J.A. against the Federal Republic of Germany and registered on 7 April 1986 under file N° 12127/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   &_THE FACTS&S             The applicant is a German citizen, born in 1953 and presently serving life imprisonment.   He is represented by Mr.   G. Strade, a lawyer in Hamburg.           On 9 August 1984 the applicant was convicted by the Hamburg Regional Court (Landgericht) of murder and sentenced to life imprisonment.   According to the findings of the court the applicant and an Italian accomplice had on 17 November 1982 shot and robbed a business man to whom they used to sell stolen videos.   Being on the run the two were arrested on 16 December 1982 in Italy on the suspicion of dealing with heroin.   The revolver with which the murder was committed was found in their possession.   They were locked in a cell together with an Italian undercover agent who pretended also to have been arrested because he was in possession of heroin.   Not knowing that the undercover agent understood German the applicant spoke of the murder to his accomplice.           On 23 December 1982 the applicant had confessed the crime before the Italian police and two German police officers.   He eventually revoked the confession when he was heard another time by an Italian investigating judge in April 1983.           At his trial before the Hamburg Regional Court the applicant likewise denied having participated in the murder.   He alleged that his Italian friend had committed the murder alone.   Subsequently, he had obliged him to flee with him since otherwise he would be shot likewise.   After their arrest the Italian friend persuaded him to confess to the crime.   He accepted to do so as he suffered from cancer and thought that he had not much time left to live.   Also he was rendered indifferent by the anti-pain drugs he had to take.           The trial Court considered that the applicant's allegations made at the trial were inconsistent and contradictory and not corroborated by other evidence.   The Court pointed out inter alia that in his confession the applicant gave a detailed description of the crime.   All details stated by him were corroborated by the circumstances of the case.   On the contrary the subsequent allegation incriminating the Italian friend to be the sole author of the crime was contradictory and untrustworthy.   If he had made the confession under the influence of drugs it would have been logical that he revoked these declarations as soon as the effect of the drugs decreased.   However, he repeated his confession on three occasions, once before a public prosecutor and once before the Italian investigating judge.   On the latter occasion he was confronted with his accomplice and maintained that they had committed the crime together.           Furthermore the Court took into consideration that according to the statements of the two German police officers who attended the interrogation on 23 December 1982 the applicant had not at all been indifferent.   Rather he first denied being involved in the matter and resigned to a detailed confession only after several hours of interrogation.   He said he was relieved by his confession and both witnesses were absolutely convinced by his statements.           The Court further took into account that the applicant and his Italian accomplice were friends, had made shooting exercises together and robbed a bank.   In these circumstances it was likely that they also planned the murder together.   On the other hand it was unlikely that a person fatally ill deliberately accepted to spend the rest of his life in prison by confessing to a crime he had not committed.           Finally the Court stated that the applicant's allegations were not confirmed by the witnesses he had named.   The Italian undercover agent did not confirm that the applicant's friend told him that he had shot the business man.   On the contrary he witnessed that the applicant said to his friend:   "we have shot someone and now we are in the soup".           The applicant's appeal (Revision) was rejected by the Federal Court (Bundesgerichtshof) on 9 August 1984 as being unfounded. Without stating further reasons the Court referred to Section 349(2) of the Code on Criminal Procedure (StPO).           The applicant's constitutional complaint was rejected on 17 September 1985 by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) as offering no prospects of success.           It is stated in the decision that the judgment complained of did not reveal any arbitrariness constituting a violation of constitutional law.   In particular the assessment by the trial court of the evidence was not arbitrary.   It is true, so the Constitutional Court pointed out, that Section 136 (a) of the Code on Criminal Procedure (StPO) prohibits obtaining statements from an accused by way of ill-treatment, fatigue, deception or other means affecting the freedom of will.   This provision, however, only applied to statements brought about directly or indirectly by State organs, not however to statements made by an accused at his own motion without having been asked to do so.           The Italian undercover agent who heard the applicant talk to his friend of the murder had by no means provoked the conversation in question.   Certain methods of mystification had to be allowed to the prosecuting authorities in the interest of combating criminality effectively.   The case was not to be distinguished from a case where a remand prisoner voluntarily informs another prisoner of having committed an offence and is later denounced by this prisoner.   In such a case there would likewise be no reason not to admit the evidence in question.   Finally the Constitutional Court pointed out that the Italian undercover agent had acted solely at the initiative of the Italian authorities.   In these circumstances it did not violate constitutional law that the evidence given by him was also taken into account by the German trial court.   Even less so as it was the applicant himself who had named the undercover agent as a witness who could confirm the allegation that his friend admitted in the Italian prison to having committed the murder.     &_COMPLAINTS&S           The applicant argues that his right to a fair trial as guaranteed by Article 6 of the Convention was violated in that the trial court considered evidence which was obtained in violation of the principle that no accused is obliged to give evidence against himself.   He submits that he had been deceived by the Italian undercover agent who pretended to have been arrested on account of possession of heroin.   As he did not know that this fellow prisoner was in reality a police agent who understood German his freedom of will was affected and thus he was led to make a statement which was later held against him by the trial court.     &_THE LAW&S           The applicant has complained that his right to a fair trial as guaranteed by Article 6 (Art. 6) of the Convention was violated because the trial court, in convicting him, took into account evidence that was obtained unlawfully, namely the statement of an Italian undercover police agent who had pretended to be a remand prisoner and in front of whom the applicant spoke in German to his friend not knowing that the police agent likewise understood German.           It is true that the use of evidence obtained unlawfully by coercive means may raise an issue as to the fairness of criminal proceedings.           However, the Commission first notes that the applicant's conviction is mainly based on his initial confession which was considered to be confirmed by other circumstantial evidence, such as the fact that he was the friend of his Italian accomplice, that they had made shooting exercises and had robbed a bank shortly before the murder.   The evidence given by the Italian undercover agent was only considered by the trial court in connection with the applicant's allegation that his friend had stated in the presence of that agent that he had committed the murder alone.   In addition the Commission notes that according to the Federal Constitutional Court the ruse employed by the Italian police against the applicant does not in itself constitute an unlawful method of obtaining evidence.   The applicant had an interest in not talking to his accomplice about the crime in the presence of a third person.   If he nevertheless freely did so it is his own responsibility that this turned against him.   He has not alleged that the undercover agent in any way caused him to talk about the killing of the business man.   In these circumstances it cannot be found that the applicant's freedom of will was affected by the action of the Italian police so as to make the use of the evidence obtained from the Italian undercover agent deprive the applicant of his right to a fair trial as guaranteed by Article 6 (Art. 6) of the Convention.           An examination by the Commission of this complaint does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the above Article.           It follows that the application is manifestly ill-founded within the meaning of Article 27 (2) (Art. 27-2) of the Convention.             For these reasons, the Commission             &_DECLARES THE APPLICATION INADMISSIBLE.&S       Secretary to the Commission                President of the Commission            (H.C. KRÜGER)                               (C.A. NØRGAARD)