CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 décembre 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. 12811/87                       by Manfred RADERMACHER and Klaus PFERRER                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 8 December 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A. WEITZEL                   H. DANELIUS                   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 17 March 1987 by Manfred Radermacher and Klaus Pferrer against the Federal Republic of Germany and registered on 19 March 1987 under file No. 12811/87;           Having regard to:   -        the report provided for in Rule 40 of the Rules of Procedure         of the Commission;   -        the observations submitted by the respondent Government on 27 January 1988 and the observations in reply submitted by the applicant on 15 March 1988;   -        the submissions made by the parties at the hearing on 8 December 1988;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as they have been submitted by the parties, may be summarised as follows:           The first applicant, born in 1943, is a businessman resident in Herzogenrath.   The second applicant, born in 1944, is a housekeeper resident in Aachen.   Both applicants are German nationals.   Before the Commission they are represented by Mr.   T. Vogler, Professor of Law at Giessen University.           Both applicants were convicted by the Munich I Regional Court (Landgericht München I) on 13 December 1985, the first applicant of counterfeiting of money (Geldfälschung; § 146 Abs. 1 Nr. 2 Strafgesetzbuch) and the second applicant of having acted as an accessory (Beihilfe).   The first applicant was sentenced to two years and nine months' imprisonment.   The second applicant was sentenced to one year's imprisonment, but the execution of his sentence was suspended on probation.           As to the facts the Regional Court found in particular that in 1981 the second applicant had met W who was living in Leipheim and had acted in the matter as an undercover agent ("V-Mann") for the Bavarian Office of Criminal Investigation (Bayerisches Landeskriminalamt).   For years W had offered him dubious deals, but the second applicant had always rejected these propositions and not yielded to W's urgent requests.   In the context of a proposed sale of a painting the second applicant had gone to see W in Leipheim.   On this occasion W had told him among other things that somebody wanted to buy counterfeit money up to a sum of 10 million US $.   A wealthy banker intended to deposit the counterfeit money in the vault of his bank and to grant through a dummy a high credit on the basis of this "security".   This credit should be used for profitable transactions.   The credit would be paid back out of these profits and the counterfeits then destroyed.   In the course of time the second applicant had told the first applicant about this offer, particularly after the matter had been raised several times by W when talking with the second applicant on the phone.           According to the respondent Government, the Bavarian Office of Criminal Investigation received information about a group of persons offering counterfeit money in the Aachen area in 1982 and 1983. According to the Government's submissions, W met the second applicant for the first time in January 1983.           In its findings as to the facts, the Munich I Regional Court further stated that, when in 1984 the first applicant faced financial difficulties and learned about an opportunity to obtain counterfeit US $ from Belgium, the second applicant had arranged a meeting with W in Leipheim.   W had repeated the offer he had earlier made to the second applicant and this time offered the first applicant the opportunity to make the deal.           In agreement with W the first applicant had then negotiated with some Belgians about the delivery of counterfeit money.   At another meeting in Stuttgart with W and a certain "Hans", who was either another undercover agent of the Bavarian Office of Criminal Investigation or an official of this Office, it had been agreed that the counterfeits to be delivered should consist of 50- or 100-US $ notes.   "Hans" had later decided that the counterfeit banknotes should be numbered consecutively and that fluorescent paper should be used. "Hans" had also examined one proof passed on to him by the first applicant and expressed his satisfaction about its quality.   He had furthermore been informed by the first applicant of the payment asked by the Belgians for the first partial delivery of 500.000 US $ and agreed to it.           Having received the counterfeit money from the Belgians in Germany on 24 February 1985, the first applicant had been ordered by "Hans" to come to Munich on 26 February 1985, where he was arrested after negotiations with "Hans".   The second applicant gave himself up to the police in Munich on 31 July 1987.           The Regional Court considered that the activities of W and "Hans" constituted a non-negligible element in regard to the offences committed by the applicants but that they did not exceed the limits permitted for activities of undercover agents.   The Court further stated:   "In the present case, the only objection against the activity of the undercover agents could flow from the fact that W <...> went on a 'fishing expedition' for potential dealers of counterfeit money in (the second applicant's) demi-monde milieu without a concrete initial suspicion against (the second applicant).   However, it is indispensable to proceed in such a way in regard to dangerous delinquency which is difficult to clear up as it is the case with delinquency involving counterfeit money ...   Otherwise it would not be possible to trace counterfeit money transactions of the present kind.   Up to the moment when W and 'Hans' entered into action in a concrete way, pretending to be interested in buying counterfeit money, (the first applicant) had already developed numerous activities of his own for a long time - (the second applicant) had established the connection - and thereby created a concrete suspicion. It is therefore out of the question that (the applicants) were instigated by undercover agents of the Bavarian Office of Criminal Investigation."   <German>   "Das einzige Bedenken gegen die Lockspitzeltätigkeit könnte im vorliegenden Fall daraus fließen, daß W ... ohne konkreten Anfangsverdacht gegenüber Pferrer in dessen Halb- weltmilieu die Angel nach potentiellen Falschgeldhändlern auswarf.   Indes kann auf ein solches Vorgehen bei gefähr- licher und schwer aufklärbarer Kriminalität, wie es u.a. die Falschgeldkriminalität ist, nicht verzichtet werden (...). Andernfalls wäre es nicht möglich, Falschgeldgeschäften der vorliegenden Art auf die Spur zu kommen.   Bis zu dem Zeit- punkt, als W und 'Hans' konkret als vorgebliche Falschgeld- abnehmer in Aktion traten, hatte der Angeklagte R (der erste Beschwerdeführer) schon über einen langen Zeitraum zahlreiche Eigenaktivitäten entwickelt - P (der zweite Beschwerdeführer) die Verbindung hergestellt - und damit einen konkreten Verdacht gesetzt.   Von einer Anstiftung der Angeklagten durch V-Leute des Bayerischen Landeskriminalamts kann daher hier keine Rede sein."           In fixing the sentences the Court considered as mitigating circumstances that the offences committed by the applicants had been strongly supported by the "agents provocateurs".         This judgment was upheld by the Federal Court of Justice (Bundesgerichtshof) on 1 July 1986.   This Court found that the police had had a legitimate interest in finding out how the first applicant was able to obtain such a quantity of counterfeit money and - when it became apparent that the counterfeit money was still to be produced - who the manufacturers were.   The Regional Court did sufficiently take into account the activity of the prosecution authorities when determining the sentence.           On 16 September 1986 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to accept the applicants' constitutional complaint (Verfassungsbeschwerde) as not offering sufficient prospects of success.   It stated that the use of undercover agents was necessary for combating the most dangerous crimes.   In the present case the first applicant was not directly induced to commit the crime by the influence of undercover agents but by a hint of a former friend. He developed essential initiatives of his own and it was he and not the agents who made the second applicant establish the connection with the persons purporting to be interested in buying the counterfeit money.           On 8 January 1987, the Duisburg Regional Court decided to suspend on probation the execution of the remaining part of the first applicant's sentence.   The Public Prosecutor's appeal against this decision was rejected by the Düsseldorf Court of Appeal (Oberlandes- gericht) on 3 February 1987.   COMPLAINTS           The applicants complain under Article 6 para. 1 of the Convention that they were induced by undercover agents to commit the offences of which they were eventually convicted.   The counterfeiting was initiated and controlled by the Bavarian Office of Criminal Investigation.   There was no offence which could have been cleared up by using undercover agents.   None of the applicants were suspected of having anything to do with production or distribution of false money.   Therefore there were no "suspects" nor was there any offence. It was the use of the undercover agents which led to the production of counterfeit money and made the applicants become "suspects".   Crimes were not cleared up, but produced.   In this respect the present case has to be distinguished from Application No. 10747/84 where a suspicion already existed at the time when the contact was established by the undercover agent.   In the present case, however, there was not the slightest reason for entertaining a suspicion against the applicants. Under such circumstances the use of undercover agents was not justified and it was contrary to the principle of fair trial as guaranteed by Article 6 para. 1 of the Convention.           The applicants also complain that contrary to Article 6 para. 3 (d) of the Convention the Munich I Regional Court refused to summon the responsible public prosecutor whose examination had been requested by the defence in order to clarify the full extent to which official agencies were involved in this matter.   Additionally, the prosecution had manipulated the availability of evidence to the applicants' detriment by initiating criminal proceedings against W.   Thus, the prosecution saw to it that W became privileged and entitled to refuse to give evidence.           The second applicant finally claims to be a victim of discrimination contrary to Article 14 of the Convention.   Although he did not have a criminal record it was apparently justified to trouble him by having State organs induce him to commit criminal offences on account of his working and living in the "demi-monde milieu".   The Convention guarantees the right to liberty and security of person (Article 5) and to a fair trial (Article 6 para. 1) for everyone.   The right to liberty and security also includes the right to be safe from being induced by State organs to commit criminal offences.   It is an intolerable discrimination to abuse him as a means for clearing up criminality and make him serve public purposes because of his working and living amongst the so-called "demi-monde".   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 17 March 1987 and registered on 19 March 1987.           On 9 November 1987 the Commission decided that, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, notice should be given to the respondent Government of the application and that the Government should be invited to submit written observations on the admissibility and merits of the case.   The Government's observations dated 27 January 1988 were received on 1 February 1988.   After extension of the time-limit, the applicant submitted his reply on 25 March 1988.           On 8 July 1988 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.           At the hearing which was held on 8 December 1988 the parties were represented as follows:   The Government   Mr.   J. Meyer-Ladewig           Ministerialdirigent,                               Federal Ministry of Justice,                               Agent   Mr.   E. Liedgens                Erster Kriminalhauptkommissar,                               Bavarian Office of Criminal Investigation,                               Adviser     The Applicants   Mr.   T. Vogler                  Professor,     Counsel   Mr.   W. Krüger                  Rechtsanwalt, Counsel     The applicants attended the hearing in person.   SUBMISSIONS OF THE PARTIES   A.       The respondent Government   1.       The Government consider that the application is not inadmissible under Articles 26 and 27 para. 3 of the Convention.   2.       The Government maintain that the use of "agents provocateurs" does not, as such, violate the rights and freedoms under the Convention.   They refer, in this respect, to the Commission's decisions on the admissibility of Applications No. 9165/80 (Dec. 6.7.81) and No. 10747/84 (Dec. 7.10.85) concerning the punishment of offences committed at an occasion specially prepared as a trap to catch the person in question, and the use of an "agent provocateur", respectively.   They consider that the use of "agents provocateurs" might only in exceptional circumstances violate the Convention.   3.       The Government submit that the right to a fair hearing under Article 6 para. 1 of the Convention calls for interpretation by the domestic legislator and the High Contracting Parties.   The lack of precision of this right excludes that specific guarantees are derived therefrom, unless indispensable requirements of a fair hearing under the rule of law are no longer met.           A right not to be convicted on account of special circumstances, such as prosecution being statute-barred or, as in the present case, the use of "agents provocateurs", is not indispensable for a fair hearing.   A balance has to be struck between the public interest in prosecution and the legitimate interests of the individual concerned, and a wide margin of appreciation has to be left to the national legislator and the national courts.           German law provides for a fair balance in such cases: in the present case, the use of "agents provocateur" was considered as a mitigating fact and the execution of the remaining half of the first applicant's sentence was suspended on probation.           In the present case, there are, therefore, no exceptional circumstances necessitating a review by the Commission.   The applicants decided freely and on their own initiative to enter into the deal with the counterfeit money.   The first applicant made up his mind to commit the offence when he heard about the opportunity to receive counterfeit money, and remembered a person interested in such a deal who had talked to the second applicant years ago.   The fact that this person was an "agent provocateur" did not decisively influence the first applicant's decision to organise a deal with counterfeit money.   The first applicant himself developed considerable criminal energy to get into contact with the "agent provocateur".           Furthermore the Convention, especially Article 6 para. 1, does not require that an "agent provocateur" cannot be used unless there is a reasonable suspicion that the person concerned has committed an offence or intends to commit an offence.   The Convention does not contain any provision concerning the use of "agents provocateurs" which corresponds to Article 5 para. 1 (c) of the Convention as regards arrest and detention on remand.   Rather Article 6 para. 1 second sentence and para. 3 (c) of the Convention expressly refer to public interests.           For the interpretation of the right to a fair hearing under Article 6 para. 1 of the Convention, account is, therefore, to be taken of the public interest to efficiently prosecute offences in connection with counterfeit money.   4.       The Government submit that Article 6 para. 3 (d) of the Convention does not confer upon a person charged with a criminal offence an unlimited right to obtain the examination of witnesses. A court can dismiss a request to take evidence if, in the court's opinion, the result is not relevant for ascertaining the truth.   The applicant's allegation that the official agancies had been involved in a plan to instigate the applicants to produce counterfeit money was completely unfounded.   The Munich I Regional Court had, therefore, not been required to summon the responsible public prosecutor as requested by the applicants.           Furthermore the Government submit that the proceedings had not been manipulated by instituting criminal proceedings against the witness W.   W would have had, in any event, the right to give evidence under S. 55 para. 1 of the Code of Criminal Procedure.   Moreover the allegations to be proved by the testimony of W had been supposed to be true.   5.       The Government consider that the second applicant was not discriminated against on account of his "demi-monde" business contrary to Article 14 of the Convention.   Rather the police correctly assumed that, by contacting the second applicant, they could get information about persons producing and dealing with counterfeit money.   6.       The Government request the Commission to declare the application inadmissible as being manifestly ill-founded.   B.       The applicants   1.       The applicants consider that the facts of the two decisions of the Commission, referred to by the Government, cannot be compared to the circumstances of the present application.           Furthermore they do not intend to question the use of "agents provocateurs" in the suppression of crime in general.   However, the question at issue in the present case is whether or not public prosecution authorities may incite persons of unblemished character to commit criminal offences, even if these persons are not suspected of having already been involved in criminal offences.   Without the instigation by the "agents provocateurs" the applicants would not have committed any criminal offence.   The question whether or not they freely and on their own initiative decided to enter into the deal is therefore irrelevant.   There are reasonable doubts whether, without the activities of the "agents provocateurs", counterfeiting offences had been committed at all.           The applicants consider that they were unfairly treated by the undercover agent W in the public interest in criminal prosecution. He instigated them to commit criminal offences in order to get hold of other suspected criminals.   Such behaviour could not be justified by the public interest in an efficient suppression of crime.   The theory of striking a balance between the public and individual interests involved disregards that procedural guarantees cannot be made dependent upon the nature of criminal offences without losing their function.   2.       As regards Article 6 para. 3 (d) of the Convention the applicants maintain that, had the evidence in the proceedings against them not been manipulated, there had been no reason to dismiss the applicants' requests in particular to have access to the files concerning the criminal proceedings against the undercover agent W.   THE LAW   1.       The applicants complain under Article 6 para. 1 (Art. 6-1) of the   Convention that the criminal proceedings against them were unfair on the ground that the offences of which they were convicted had been brought about by undercover agents of the German police.           Article 6 para. 1 (Art. 6-1) first sentence of the Convention provides:   "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The Government consider that the use of "agents provocateurs" does not, as such, violate the rights and freedoms under the Convention.   In particular, having regard to the right to a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention, a fair balance had    to be struck between the public interest in prosecution and the legitimate interests of the individual concerned, and a wide margin of   appreciation had to be left to the national legislator and courts.   In   the present case, the activities of the undercover agents had been   reasonably taken into account when fixing the applicants' sentences.           The Commission considers that the applicants' complaint, that the use of the undercover agents to induce them to commit the offences of which they were eventually convicted was contrary to the principle of fair trial, raises questions of fact and of law which are of such a complex nature that their determination requires an examination of the merits.   The application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, but must be declared admissible, no other ground for declaring it inadmissible having been established.   2.       Furthermore the applicants complain that the Munich I Regional Court refused to summon a witness as requested by the defence and that the availability of evidence was manipulated.   They invoke Article 6 para. 3 (d) (Art. 6-3-d) of the Convention which provides that everyone charged   with a criminal offence has the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against   him.   Moreover, the second applicant complains about discrimination contrary to Article 14 (Art. 14) of the Convention.   The Commission finds that these complaints concern certain aspects of the fairness of the criminal proceedings as a whole which cannot be separated from the   complaint under Article 6 para. 1 (Art. 6-1) of the Convention which the Commission found to be admissible above.   Accordingly, these complaints must also be declared admissible.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case.       Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                       (C. A. NØRGAARD)