CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 1988

.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. 12505/86                       by Günter Hubert WISCHNEWSKI                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 11 October 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              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 28 October 1986 by Günter Hubert Wischnewski against the Federal Republic of Germany and registered on 29 October 1986 under file No. 12505/86;           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           The facts of the case, which do not appear to be in dispute between the parties, may be summarised as follows:           The applicant, born in 1947, is a German national.   When lodging his application he was detained at Duisburg prison.   Before the Commission he is represented by Prof.   T. Vogler, a law professor at Giessen.           In November 1983 the applicant and his wife were divorced. The applicant's wife was granted the right to custody over their son M and a right to maintenance.   In December 1983 criminal proceedings were instituted against the applicant on the suspicion of attempted instigation to murder (versuchte Anstiftung zum Mord) of his divorced wife.           The applicant was in detention on remand from 15 December 1983 until 10 February 1984.           The Mönchengladbach Regional Court (Landgericht) held trial against the applicant on 7, 9 and 12 August 1985.   The applicant was assisted by a lawyer.           On 12 August 1985 the Regional Court convicted the applicant of attempted instigation to murder, and sentenced him to three years' imprisonment.           The Court found in particular that in October 1983 the applicant had started to tell the witness V, with whom he co-operated in business matters, about his financial problems as regards his divorced wife and about how to get rid of her.   At the end of October 1983 he offered V 7,000 DM for the murder of his divorced wife.   V pro forma declared his consent.   The applicant showed V the house where his wife was living and photographs of her.   Furthermore they agreed that she should be shot.   On 2 December 1983 the applicant paid V 2,000 DM in order to buy a weapon.   On 3 December 1983 V bought an air-pistol with telescopic sight.   The next day he showed it to the applicant who did not notice that it was only an air-pistol.   On 5 December 1983 the applicant telephoned V who, in the presence of his fiancée, the witness J, secretly recorded the telephone conversation of about 20 minutes with a cassette recorder.   In the course of the recorded conversation the applicant negotiated about the amount of money to be paid in advance in order to enable V to "disappear" immediately after having committed the murder.   The applicant and V met again, V received a further 500 DM. V then exchanged the air-pistol in the store for other goods.   Afterwards J informed the applicant that the telephone conversation of 5 December had been recorded and that V never intended to murder the applicant's wife.   On 12 December 1983 V and J happended to meet the applicant together with his fiancée P.   The applicant requested V to sign promissory bonds of about 6,000 DM with regard to earlier loans.   When V refused, the applicant requested V's car keys as security.   This led to a fight between the applicant, V and J.   Shortly afterwards the applicant and P left.   Later V and J found the tyres of V's car pierced.   The same evening V went to the police, reported the attempted instigation and handed over the cassette with the recorded telephone conversation.         The Regional Court based its finding on statements by the applicant, and on the evidence given by the witness V, the applicant's divorced wife, P, J and two further witnesses, whose role and evidence in the case are not indicated in the judgment, as well as on the tape recording of the telephone conversation by V, which had been played back during the trial.           The applicant stated that he had only talked with V about his financial problems as regards his wife, that V had himself offered to murder the applicant's wife and threatened him to tell her that the applicant had attempted to induce him to commit the crime and that, in particular, the tape recording was manipulated.           The Court found, however, that the applicant's allegations were disproved, with the degree of certainty necessary for conviction, by the evidence of the witness V in connection with the tape recording and the further evidence ("Diese Einlassung des Angeklagten ist mit der für seine Verurteilung erforderlichen Sicherheit durch die Aussage des Zeugen V... in Verbindung mit der ...   Tonbandaufnahme und dem übrigen Beweisergebnis widerlegt").   Having regard to his previous convictions, the Court observed that V was not the "ideal" witness.   It nevertheless found his testimony credible and convincing.   V had stated the main facts without contradictions.   His testimony was decisively supported by the contents of the recorded telephone conversation with the applicant.   ("Die Aussage den Zeugen V... wird entscheidend gestützt durch den Inhalt des von ihm aufgenommenen Telefongespräches mit dem Angeklagten".)           The applicant's objection that the tape recording had been manipulated and composed of various other conversations was considered to be refuted by the evidence of the witnesses V and J as well as by an expert opinion of the Federal Office of Criminal Investigations (Bundeskriminalamt).   The Office had examined the cassette and found that, at the beginning of the telephone call, the recording had been taped over and that there were for sixty seconds sounds of cracking, but that there were no signs of manipulation.   The Office were unable to say whether professional electronic equipment could be used in such a way as to combine a conversation with absolutely identical structure of intonation.   The Court considered that it was very unlikely that V could have done so.           As to the applicant's submission that he resisted V's offer the Court referred to extensive parts of the recorded conversation and concluded that the applicant at the time of the conversation had insisted on his plan to have his divorced wife murdered by V.           The applicant lodged an appeal on points of law (Revision) with the Federal Court of Justice (Bundesgerichtshof) submitting inter alia that, as it was unlawful, the secret recording of a conversation could not be used as evidence.   He referred, in this respect, to S. 201 of the German Penal Code (Strafgesetzbuch) according to which a person who, without authority, records the words of somebody else, which were not spoken in public, or who uses such a recording, or who makes such a recording available to a third person, shall be punished with imprisonment for up to three years or a fine.           The Federal Attorney General, in his observations of 25 February 1986 on the appeal, considered that the tape recording could be used as evidence against the applicant.   The legitimate interest, that no use is made of a secret tape recording by a third person, was superseded where the prevailing general interests so required. Prevailing general interests were in particular the maintencance of an efficient criminal justice and an efficient investigation of serious criminal offences such as offences concerning life and limb.           On 2 April 1986 the Federal Court of Justice dismissed the applicant's appeal on points of law on the ground that the examination of the appeal had not disclosed any errors of law.           On 25 April 1986 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht).   The applicant invoked the right to free development of his personality under Article 2 para. 1 of the Basic Law (Grundgesetz).   He submitted in particular that the general interest of prosecution did not outweigh his right to secrecy of conversation as guaranteed by the right to free development of his personality.           On 9 June 1986 the Federal Constitutional Court refused to admit the constitutional complaint on the ground that it offered no prospect of success.   The Court, having regard to its established jurisprudence, found that the taking of evidence from V's tape recording was justified under constitutional law.   The attempted instigation to murder constituted a serious criminal offence.   The use of the tape as evidence could also not be objected to as being disproportionate.     COMPLAINTS   1.       The applicant complains under Article 6 paras. 1 and 2 of the Convention that the taking of evidence from the secret tape recording violated his right to a fair hearing.   He submits in particular that the secret recording by V was not necessary in order to avert any danger.   The secret recording of telephone conversations by State authorities would, under the relevant provisions of the German Code of Criminal Procedure (Strafprozessordnung), only be lawful in cases of a particularly serious criminal offence, if ordered or confirmed by a judicial authority.   Furthermore attempted instigation was, in various countries, not punishable at all.   The applicant considers that, though the tape recording was not the sole evidence at the trial, the Regional Court, in its judgment, made it clear that it was the decisive one without which the applicant would not have been convicted.   2.       The applicant complains under Article 8 para. 1 of the Convention that the use of the secret recording of the telephone conversation violated his right to respect for his private life and correspondence.   He considers that the German authorities interfered with these rights in that they made use of the unlawful private tape recording.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 28 October 1986 and registered on 29 October 1986.           On 7 December 1987 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits.           The Government's observations dated 1 March 1988 were received on 7 March 1988.   The applicant's submissions in reply of 8 April 1988 were received on 12 April 1988.           On 6 July 1988 the Commission decided to adjourn the further examination of the case pending the judgment of the European Court of Human Rights in the Schenk case.   The judgment was delivered on 12 July 1988.     SUBMISSIONS OF THE PARTIES   A.       The Government   1.       Incompatibility ratione personae           The Government submit that the applicant's complaint under Article 8 of the Convention about the secret tape recording is incompatible ratione personae with the Convention on the ground that the tape recording was secretly effected by a private individual without knowledge of German authorities.   The responsibility of the Federal Republic of Germany is, therefore, not engaged.   2.       Exhaustion of domestic remedies           The Government consider that the applicant did not exhaust the remedies available to him under German law in respect of his complaint under Article 8 of the Convention.   The applicant should have laid a complaint (Strafantrag) against the person responsible for the recording for having committed an offence under S. 201 para. 1 of the German Penal Code.   Under S. 205 para. 1 of the Penal Code such a complaint would have been a pre-condition for criminal proceedings against V.   According to S. 205 para. 1 offences under S. 201 para. 1 of the Penal Code are only prosecuted upon complaint.   Under S. 77 para. 1 and S. 77 (b) the victim of the offence in question is entitled to lay the complaint within three months from the date when he knows about the offence and the person having committed the offence.   3.       As to Article 6 para. 1 of the Convention           The Government find that the reasoning of the Commission in the Schenk case (Report 14.5.1986 para. 59), that the Convention contains no express or implied requirement that evidence obtained unlawfully under domestic law should necessarily be ruled inadmissible, applies a fortiori to the present case.           They maintain that the secret tape recording of the applicant's telephone conversation was justified under S. 34 of the Penal Code and, therefore, lawful under German law.   S. 34 provides that any person committing an offence in order to avert an immediate   and otherwise unavoidable danger to life, limb, liberty, honour, property or another protected interest of himself or another person does not act unlawfully if, considering all conflicting interests, in particular the interests concerned and the degree of danger threatening them, the interest protected by him significantly outweighs the interest harmed.   This only applies if the act is an appropriate means of averting the danger.   In the present case V secretly effected the tape recording in order to prevent the applicant from killing his wife.   The recording of the telephone conversation was an appropriate and the only means to avert this danger and have the applicant convicted.   The public interest in the prevention of murder considerably outweighs the applicant's private interest in having his conspiracy kept secret.           Furthermore the Government submit that the proper administration of justice and effective suppression of crime are taken into account by the Convention, in particular Articles 2 para. 2 (b), 5 para. 1 (c), 8 para. 2, 10 para. 2 and Article 11.   The Convention should not, therefore, be interpreted so as to provide a loop-hole for criminals to avoid prosecution.           Moreover the Government consider that there are no other indications that the criminal proceedings were unfair.   The Regional Court did not exclusively proceed from the secret tape recording but primarily from the evidence of the witness V.   It carefully considered V's credibility and had the authenticity of the tape recording examined in an expert opinion.           The Government conclude that the applicant's complaint under Article 6 para. 1 of the Convention is manifestly ill-founded.   4.       As to Article 6 para. 2 of the Convention           The Government consider that the use of a secret tape recording in criminal proceedings does not raise an issue under Article 6 para. 2 of the Convention, but is exclusively to be examined under Article 6 para. 1 of the Convention.   5.       As to Article 8 of the Convention           The Government submit that the use of a secret tape recording only falls to be considered under Article 6 para. 1 of the Convention, which is the lex specialis as regards the fairness of criminal proceedings.   They contend that the complaint in respect of Article 8 para. 1 of the Convention is incompatible ratione materiae with the provisions of the Convention.           However, even assuming an interference with the right to respect for the appicant's private life, the use of the secret tape recording was justified under Article 8 para. 2 of the Convention.           The measure was in accordance with S. 244 para. 2 of the Code of Criminal Procedure which provides that the court, in order to establish the truth, has, ex officio, to extend the taking of evidence to all facts and evidence relevant for the decision.           The measure was necessary in a democratic society for the "prevention of disorder".   In this respect, the same considerations as under Article 6 para. 1 apply.   The attempted instigation to murder of which the applicant was convicted could only be properly sanctioned by use of the secret tape recording.   The use was also proportionate, as the public interest in the punishment of an attempted instigation to murder outweighs by far the interest of the criminal in the secrecy of a telephone call disclosing his criminal intentions.   6.       Conclusion           The Government request the Commission to declare the application in respect of the applicant's complaints under Article 8 of the Convention inadmissible for non-exhaustion of domestic remedies and as being incompatible ratione personae with the provisions of the Convention, or, alternatively, - as well as the remainder of the application - as being manifestly ill-founded.     B.       The applicant           The applicant submits that the secret tape recording of his telephone conversation cannot be justified under S. 34 of the Penal Code.   He refers, in this respect, to a decision of the Federal Court of Justice of 9 April 1986 (3 StR 551/85 - BGHSt 35 p. 39), according to which the secret tape recording of a non-public conversation of a person charged with a criminal offence is - except for the restrictions on the secrecy of telecommunications provided for by law - generally unlawful and entails that the tape recording cannot be used as evidence.   Only exceptionally a secret tape recording could be justified, if it is necessary to avert an immediate danger from an unidentified speaker.   However, it would not be sufficient that such a tape recording constitutes a supplementary means of evidence against a person already known.           If, in the present case, there had been any danger, it could have been averted by disclosing the alleged attempt to incite somebody to murder.   A secret tape recording was not necessary.   Furthermore, the interference with the applicant's right to respect for his private life cannot be balanced with the alleged attempted instigation to murder, which is at the lowest level of criminal responsibility and not even punishable in other countries.           Moreover, the applicant strongly denies the authenticity of the tape recording and alleges that the witness V manipulated the tape recording in order to blackmail him.           The applicant considers that the Mönchengladbach Regional Court violated his right to a fair hearing, in particular the principle "ex iniuria ius non oritur", when it used the unlawful secret tape recording of his own previous statements as evidence to find him guilty.     THE LAW   1.       The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the criminal proceedings against him were unfair on the ground that the Regional Court took evidence from an unlawful and manipulated tape recording.   Article 6 para. 1 (Art. 6-1) of the Convention provides, inter alia, that "in the determination of any criminal charge against him, everyone is entitled to a fair ... hearing".           The Government submit, in particular, that the Convention contains no express or implied requirement that evidence obtained unlawfully under domestic law should necessarily be ruled inadmissible.   In the present case, the secret recording of the applicant's telephone conversation was justified under Section 34 of the Penal Code and, therefore, lawful under German law.   Its authenticity was examined by an expert.            The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45; No. 10000/82, Dec. 4.7.83, D.R. 33 pp. 247, 255/256).   It follows that the Commission cannot examine whether the tape recording of the applicant's telephone conversation with V was manipulated or not.           While Article 6 para. 1 (Art. 6-1) of the Convention guarantees, inter alia, that "in the determination of any criminal charge against him, everyone is entitled to a fair ... hearing", it does not lay down rules as to the evidence as such, and, in particular, as to its admissibility, these questions being essentially dependent on domestic legislation.   In particular, none of the Convention's provisions expressly requires that evidence obtained illegally under national law should not be admitted.   The Convention organs therefore cannot exclude as a matter of principle and in the abstract that evidence obtained unlawfully under domestic law may be admissible, but must ascertain in the specific case whether, having regard to its particular circumstances of the case in question, the trial - taken as a whole - was fair within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (Eur.   Court H.R., Schenk judgment of 12 July 1988, Series A no. 140, paras. 46-49).           In the present case, the Commission notes first that the Mönchengladbach Regional Court did not, in its judgment of 12 August 1985, expressly deal with the question whether or not the tape recording was admissible evidence, whereas the fact that the recording was effected without the applicant's knowledge and consent appears from the Court's statement of facts.   The Federal Attorney General, in the appeal proceedings before the Federal Court of Justice, and the Federal Constitutional Court found that the secretly effected tape recording could lawfully be used as evidence against the applicant on the ground that the proceedings concerned a serious criminal offence. The German courts did not deal with the question whether or not V's secret tape recording was justified under German law.   The Commission finds that it is not called upon to decide this issue on the ground that, in any event, the approach of the German courts does not, as such, render the criminal proceedings against the applicant unfair.           Furthermore, the Commission finds no evidence to indicate that the applicant, who was represented by a defence counsel, could not properly defend himself.   The Commission notes in particular that the applicant had the opportunity to contest the authenticity of the tape recording and that the Regional Court took, in this respect, evidence from an expert.   Moreover, V was summoned and heard as a witness at the trial as to the contents of the taped telephone conversation.           As regards the assessment of evidence the Commission considers that the Mönchengladbach Regional Court did not base its decision exclusively on the tape recording of the telephone conversation between the applicant and V.   It took evidence from several witnesses including V and his fiancée J.   Moreover, the Regional Court, in its judgment, referred in particular to the testimony of the witness V as the main evidence of the applicant's guilt.   The evidence obtained from the tape recording was considered to be the decisive support for V's testimony.   The Regional Court also had regard to the fact that the recorded telephone conversation was confirmed by V and his fiancée J and that the authenticity of the recording was established by an expert opinion.           The Commission is, therefore, of the opinion that, in the specific circumstances of the instant case, the taking of evidence from a secret tape recording was not contrary to the guarantee of a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains under Article 8 (Art. 8) of the Convention that the taking of evidence by the Regional Court from the secretly effected tape recording of a telephone conversation amounts to a violation of his right to respect for his private life and correspondence.           Article 8 para. 1 (Art. 8-1) of the Convention guarantees to everyone the right to respect for his private life and correspondence.   These notions also cover telephone conversations (Eur.   Court H.R., Klass and others judgment of 6 September 1978, Series A no. 28 p. 21 para. 41; Malone judgment of 2 August 1984, Series A no. 82 p. 30 para. 64).           However, the Commission notes that, in the present case, State authorities were not involved in the secret tape recording of the applicant's telephone conversation with V.   The Commission finds that the question of the use made of the secretly effected tape recording during the trial has already been examined under Article 6 para. 1 (Art. 6-1) of the Convention and does not raise a separate issue under Article 8 (Art. 8) of the Convention.   It is, therefore, not necessary to examine the present case under Article 8 (Art. 8) of the Convention.           For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)