CEDH · CASELAW;REPORTS;ENG — 11 octobre 1990

.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 }  Application No. 12811/87   Manfred RADERMACHER and Klaus PFERRER   against   the FEDERAL REPUBLIC OF GERMANY   REPORT OF THE COMMISSION   (adopted on 11 October 1990)                           TABLE OF CONTENTS                                                                 PAGE   I. INTRODUCTION    (paras. 1 - 19) .............................................   1      A. The application       (paras. 2 - 3) ...........................................   1      B. The proceedings       (paras. 4 - 14) ..........................................   1      C. The present Report       (paras. 15 - 19) .........................................   2   II. ESTABLISHMENT OF THE FACTS     (paras. 20 - 66) ...........................................   4        A. The particular circumstances of the case         (paras. 20 - 61) .......................................   4           1.   Survey            (paras. 20 - 23) ....................................   4           2.   The investigations            (paras. 24 - 38) ....................................   4              a)   First contacts between the applicants                and W. (1981/1983-1984)                (paras. 24 - 30) ................................   4                  aa) Version of the bill of indictment of the                    Munich Public Prosecutor's Office of                    27 September 1985                    (para. 24) ..................................   4                  bb) Version of the second applicant in his                    statement of 2 October 1985                    (para. 25) ..................................   4                  cc) Version of the judgment of the Munich I                    Regional Court of 13 December 1985                    (para. 26) ..................................   5                  dd) Version presented by the Government to                    the Commission after November 1988                    (paras. 27 - 30) ............................   5              b) Preparation of a counterfeit money deal (1984)                (paras. 31 - 36) ................................   5                  aa) Version of the bill of indictment of the                    Munich Public Prosecutor's Office of                    27 September 1985                    (paras. 31 - 32) ............................   5                  bb) Version of the second applicant in his                     statement of 2 October 1985                     (para. 33) .................................   6                  cc) Version of the judgment of the Munich I                    Regional Court of 13 December 1985                    (paras. 34 - 35) ...........................   6                  dd) Version presented by the Government                    to the Commission after November 1988                    (para. 36) .................................   7              c)   Events leading to the applicants' arrest (1985)                (paras. 37 - 38) ...............................   7           3.   The proceedings before the Munich I Regional Court            (paras. 39 - 48) ...................................   7           4.   Judgment of the Munich I Regional Court of            13 December 1985            (paras. 49 - 55) ...................................   9           5.   Appeal proceedings            (paras. 56 - 58) ...................................   10           6.   Criminal investigations conducted against W.            (paras. 59 - 61) ...................................   11        B. Relevant domestic law and practice         (paras. 62 - 66)   .....................................   11   III. OPINION OF THE COMMISSION      (paras. 67 - 104) ........................................   14          A.   Complaints declared admissible (para. 67)...........   14          B.   Points at issue            (para. 68) .........................................   14          C.   Article 6 para. 1 of the Convention            (paras. 69 - 92) ...................................   14              1.   The investigations              (paras. 70 - 84) .................................   14              2.   The course of the ensuing criminal proceedings              (paras. 85 - 91) .................................   17              Conclusion (para. 92) ..............................   18          D.   Article 6 para. 3 (d) of the Convention            (paras. 93 - 99) ...................................   18              Conclusion            (para. 99) .........................................   19          E.   Article 14 of the Convention            (paras. 100 - 103) .................................   19              Conclusion            (para. 103) ........................................   20          F.   Recapitulation            (para. 104) ........................................   20   DISSENTING OPINION of Mrs.   J. Liddy ...........................   21   APPENDIX I       :   HISTORY OF THE PROCEEDINGS .................   22   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ..............   24   I.   INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       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 were represented by Mr.   T. Vogler, Professor of Law at Giessen University, and Mr.   W. Krüger, a lawyer practising in Munich.           The application is directed against the Federal Republic of Germany whose Government were represented by their Agent, Mr.   J. Meyer-Ladewig, Ministerialdirigent, Federal Ministry of Justice.   3.       The application concerns complaints under Article 6 paras. 1 and 3 (d) and Article 14 of the Convention that criminal proceedings against the applicants were unfair on the ground that the offences of which they were convicted were brought about by undercover agents of the German police.   Furthermore, they claim that the prosecution had manipulated the availability of evidence at the trial, where the extent to which German officials were involved in this matter could not be fully clarified.   B.       The proceedings   4.       The application was introduced on 17 March 1987 and registered on 19 March 1987.   5.       On 9 November 1987 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to submit observations in writing on the admissibility and merits of the application.           The Government's observations dated 27 January 1988 were received on 1 February 1988.   After an extension of the time-limit, the applicant submitted his reply on 25 March 1988.   6.       On 8 July 1988 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   7.       The hearing took place on 8 December 1988.   The applicants who attended the hearing in person were represented by MM. T. Vogler and W. Krüger.   The respondent Governemnt were represented by Mr.   J. Meyer-Ladewig, Agent, and by Mr.   E. Liedgens, Erster Kriminal- hauptkommissar, Bavarian Office of Criminal Investigation (Bayerisches Landeskriminalamt), as Adviser.   8.       Following the hearing the Commission declared the application admissible.   9.       The text of this decision was communicated on 15 February 1989 to the parties who were invited to submit any additional observations or further evidence which they wished to put before the Commission. The Government were invited to submit further information on particular issues.   10.      Written observations on the merits and further documents were submitted by the Government on 14 March and 7 April 1989.   After three extensions of his time-limit, the applicants' representative Mr.   Vogler submitted observations in reply and documents on 30 June 1989.   11.      On 8 September 1989, upon the Government's request of 4 August 1989, the parties were granted a further time-limit of four weeks to make their final submissions.   The Government's further submissions were dated 2 October 1989.   The applicants made further submissions on 6 and 9 October and 13 November 1989.   The Government further commented upon the applicants' submissions on 4 January 1990.   12.      On 8 and 9 March 1990 the Commission resumed its examination of the case.   It decided to invite the parties to submit further written observations on particular issues.   13.      The Government submitted their observations on 25 April and 2 May 1990, the applicants their observations on 27 April and 30 May 1990.   14.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   15.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A. WEITZEL                   H. DANELIUS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY   16.      The text of this Report was adopted on 11 October 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   18.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   19.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   1.       Survey   20.      Following contacts between the applicants and W., who later turned out to be a police informer ("V"-Mann) of the Bavarian Office of Criminal Investigation (Landeskriminalamt), as well as a police officer of this Office, the applicants delivered counterfeit US dollars which had been produced in Belgium.   The first applicant was eventually arrested on 26 February 1985, the second applicant gave himself up to the police on 31 July 1985.   21.      On 13 December 1985 the Munich I Regional Court (Landgericht) convicted the first applicant of counterfeiting money, 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 to one year's imprisonment.   22.      During the proceedings before the Regional Court W. refused to give evidence.   In the Government's subsequent submissions to the Commission of 14 March 1989, it was explained that on 13 December 1982 an assurance of confidentiality had been given to W.   However, after the introduction of the present application, W. consented in November 1988 to give a full account of the events between 1982 and 1984.   23.      Thus, different versions of the events leading to the applicants' conviction have been presented in the domestic and in the Convention proceedings.   These versions are as follows.   2.       The investigations           a)   First contacts between the applicants             and W. (1981/1983-1984)               aa) Version of the bill of indictment of the Munich                 -----------------------------------------------                 Public Prosecutor's Office of 27 September 1985                 -----------------------------------------------   24.      According to the bill of indictment the second applicant told the first applicant around 1981 that he knew somebody who would buy counterfeit money up to 10 million US dollars.              bb) Version of the second applicant in his statement of                ---------------------------------------------------                2 October 1985                --------------   25.      According to the second applicant's statement he met W., a businessman, around 1981.   W. always had interesting deals to offer. To the second applicant's surprise, on one occasion W. referred to illegal deals, namely to a bank director who required 4 million counterfeit US dollars as security to obtain a credit.   In 1981, he, the second applicant, showed no interest in this deal, nor in the subsequent years when W. again contacted him with various dubious offers, including the counterfeit deal.   The second applicant also informed the first applicant who equally displayed no interest.              cc) Version of the judgment of the Munich I Regional                ------------------------------------------------                of 13 December 1985                -------------------   26.      According to the judgment of the Regional Court, the second applicant met W. in 1981.   In the context of the proposed sale of a painting, the second applicant visited W. who told him about a banker intending to buy up to 10 million counterfeit US dollars.   The 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;   it would be paid back out of the profits and the counterfeit money would eventually be destroyed.   The second applicant subsequently told the first applicant about this offer, particularly after the second applicant and W. had several times spoken about this on the telephone.              dd) Version presented by the Government to the Commission                -----------------------------------------------------                after November 1988                -------------------   27.      According to the Government's subsequent submissions, on 12 December 1982 G., a brothel owner, visited W. and offered him counterfeit US dollars.   G. also offered again to come with a further person, later identified as the second applicant.   28.      These events were recorded in a "Note for the file" ("Vermerk") of the Bavarian Office of Criminal Investigation dated 20 December 1982.   The Note referred in particular to a "Communication Police Informer No. 1 of 13.12.1982, 16h00" ("Mitteilung V-Mann Nr. 1 vom 13.12.1982, 16.00 Uhr").   29.      G. again visited W. in January 1983, this time accompanied by the second applicant.   At this meeting, G. and the second applicant offered counterfeit money to W.   In agreement with the Bavarian Office of Criminal Investigation, W. then accepted the offer while telling the story about the banker who would use the money in order to obtain a credit.   30.      On 14 January 1983 the Aachen Police Presidency (Polizeipräsidium) sent a telegram to the Bavarian Office of Criminal Investigation.   Therein, particulars were stated about G., inter alia that he ran brothels.   The telegram also referred to a further unidentified person who later turned out to be the second applicant.           b) Preparation of a counterfeit money deal (1984)              aa) Version of the bill of indictment of the Munich Public                -----------------------------------------------------                Prosecutor's Office of 27 September 1985                ----------------------------------------   31.      According to the bill of indictment, in autumn 1984 the first applicant met an unknown person at an Aachen restaurant who offered counterfeit US dollars.   The first applicant then remembered the conversation with the second applicant three years before, whereupon he decided to undertake a substantial deal with counterfeit money. The unknown person eventually told the first applicant that he could obtain counterfeit US dollars up to 10 million dollars;   the first applicant was given sample counterfeit US dollar bills and was also told where to find the deliverer of the money, a Belgian.   32.      The first applicant then spoke about this opportunity to the second applicant who organised a meeting with a further, unknown person.   At the meeting this unknown person referred to a bank director willing to deposit up to 10 million US dollars in his vault in order to obtain a credit.   The first applicant then handed over to the unknown person at least one banknote which he had received from the unknown person at the Aachen restaurant.              bb) Version of the second applicant in his statement of                ---------------------------------------------------                2 October 1985                ---------------   33.      According to the second applicant's statement, in autumn 1984 he was contacted by the first applicant who asked him to establish links with W.   The applicants then met W., and the first applicant gave W. a banknote.   During this meeting W. explained details of a plan which would succeed if the first applicant could provide four million conterfeit US dollars.   The first applicant subsequently told the second applicant that he wanted to pursue the deal, though in February 1985 he told the second applicant that he had reliable indications that something was strange about the whole deal and that in his view the police were behind it all.              cc) Version of the judgment of the Munich I Regional Court                ------------------------------------------------------                of 13 December 1985                -------------------   34.      According to the Regional Court, in October 1984, while in Aachen, the first applicant's girlfriend pointed out to him a man in a restaurant of whom she knew that he was looking for receivers of counterfeit money.   The first applicant then remembered the previous conversation with the second applicant and decided to deal with this man.   The latter eventually told the first applicant of an opportunity to obtain counterfeit US dollars in Belgium and gave him sample counterfeit banknotes.   Upon the first applicant's insistence, the second applicant then arranged a meeting with W. which took place two weeks later.   The latter repeated the offer he had previously made to the second applicant and this time offered the first applicant the opportunity to make the deal.   The first applicant then gave W. one of his counterfeit banknotes.   35.      In agreement with W., the first applicant then negotiated with some Belgians the delivery of counterfeit money.   At another meeting in Stuttgart with W. and a certain "Hans", it was agreed that the counterfeit money to be delivered should consist of notes of 50 or 100 dollars.   After the meeting with W., all further contacts took place between the first applicant and "Hans".   "Hans" also examined one sample passed on to him by the first applicant and expressed his satisfaction with its quality.   He was furthermore informed by the first applicant of the payment asked by the Belgians for the first partial delivery of 500,000 US dollars and agreed to it.              dd) Version presented by the Government to the Commission                -----------------------------------------------------                after November 1988                -------------------   36.      According to the Government's subsequent submissions, on 16 November 1984 the second applicant contacted W. and announced a visit with another person.   The meeting took place between 22 and 25 November 1984.   The other person, namely the first applicant, then presented a sample 20 US dollar note.   This note turned out to belong to a type of counterfeit notes which had appeared for the first time in 1975 and had been offered in the Aachen area since 1977.   Police investigations in this matter had so far remained unsuccessful. Following this further meeting, a police officer of the Bavarian Office of Criminal Investigation intervened as undercover agent, and controlled the transactions with the applicants in order to render the arrest of the deliverers and counterfeiters possible.           c)   Events leading to the applicants' arrest (1985)   37.      The first applicant received the counterfeit money from Belgian deliverers on 24 February 1985.   The first applicant was then ordered by "Hans" to come to Munich on 26 February 1985 where, after negotiating with "Hans", the first applicant was arrested.   Upon his arrest, the police seized about 5,000 counterfeit US dollars in 100 dollar notes of a new type.   The second applicant gave himself up to the police on 31 July 1985.   38.      On 12 March 1985 the German authorities were informed that the Belgian persons who had been involved in the counterfeiting offences had been arrested.   3.       The proceedings before the Munich I Regional Court   39.      On 27 September 1985 the Munich Public Prosecutor's Office charged the first applicant with counterfeiting money, and the second applicant with having acted as an accessory.   40.      In submissions of 2 October 1985, the second applicant unsuccessfully requested the Munich Public Prosecutor's Office to cancel the warrant of arrest.   The second applicant stated inter alia that W. was clearly a police informer who for many years had attempted to persuade him to undertake an illegal deal.   41.      On 13 October 1985 the first applicant requested the Munich I Regional Court inter alia to examine "the actual instigator of the offence" ("der eigentliche Anstifter der Tat") whose family name he no longer remembered.   The first applicant stated that such instigation had occurred persistently and over many years, and that the applicants had been degraded to mere objects.   42.      On 6 December 1985 the trial against the applicants opened before the Munich I Regional Court.   Hearings were held on 6, 9 and 13 December 1985.   In these proceedings the applicants were represented by counsel.   43.      In the hearing on 6 December 1985, W. refused, on the basis of Section 55 of the Code of Criminal Procedure (Strafprozessordnung, see para. 63 below) to give evidence as he might thereby incriminate himself.   W. referred in particular to preliminary investigations which had meanwhile been instituted against him with regard to the events at issue in the proceedings against the applicants. W. therefore did not reply to the first applicant's question whether or not "Hans", a further person involved in the transactions, was an official of the Bavarian Office of Criminal Investigation.   The Regional Court decided that W.'s refusal was justified.   44.      Also on 6 December 1985, the first applicant asked to hear the Public Prosecutor concerned as witness on the questions as to whether he had been informed about instructions given by the Bavarian Office of Criminal Investigation to a police informer.   45.      The Regional Court dismissed this request at the hearing on 9 December 1985.   According to the handwritten minutes of the hearing, the Court considered that one could not renounce the option of using undercover agents in areas of drug dealing and counterfeiting money.   46.      The Court further found that in any event it was irrelevant whether the Public Prosecutor concerned had known about the activities of police informers with regard to the applicants.   Rather, it was essential that the measures of the Public Prosecutor's Office did not exceed the limits of justice (die vom Gerechtigkeitsprinzip gezogenen Grenzen nicht überschreiten).   The Court further considered that on the basis of the trial so far it was to be assumed that W. had acted as police informer of the Bavarian Office of Criminal Investigation and that "Hans" was either also a police informer, or an official of this Office, and that the disclosure of his identity did not appear necessary.   47.      Further at the hearing on 9 December 1985, the first applicant requested the investigation files concerning W. to be made available for consultation.   He submitted that the proceedings against W. had only been instituted in order to grant him a right to refuse to give evidence.   48.      The Regional Court refused this request on 9 December 1985 as being irrelevant.   The Court considered in particular that the fact that the investigations against W. had been opened later and were not yet formally terminated could be due to technical reasons.   The Public Prosecutor's Office might also have intended to reserve to W. a right to refuse to give evidence in order not to force him to give evidence either about measures of police strategy regarding the activities of police informers and undercover agents, or about "Hans".   The theoretical possibility that the Public Prosecutor's Office intended to suppress evidence favourable to the applicants could be excluded.   Having regard to the applicants' comprehensive statement, there was nothing to indicate that W.'s evidence could in any way influence the Court's judgment to their advantage.   The applicants' statement that W. had first asked the second applicant about the delivery of counterfeit US dollars and enticed them to commit the offences concerned had not yet been refuted.   4.       Judgment of the Munich I Regional Court         of 13 December 1985   49.      On 13 December 1985 the Munich I Reginal Court convicted the first applicant of counterfeiting money under Section 146 para. 1 (2) of the Penal Code (Strafgesetzbuch, see para. 62 below) and the second applicant of having acted as accessory (Beihilfe).   The first applicant was sentenced to two years and nine months' imprisonment, the second applicant to one year's imprisonment, though the execution of his sentence was suspended on probation.   50.      The Regional Court based its findings described above on the statements of the two applicants, the evidence of two police officers who had arrested the first applicant, the police officer at the Bavarian Office of Criminal Investigation who had conducted the investigations against the applicants and an expert from the German Federal Bank.   51.      As to the applicants' personal circumstances, the Regional Court considered that by 1984 the first applicant had become highly indebted.   Moreover, he had previously been convicted on various occasions of theft, of having negligently caused bodily injuries in road traffic, of tax evasion, of absconding after a traffic accident, and of manslaughter.   The second applicant had run brothels until 1984, and then worked as a croupier in a casino.   He had had no previous convictions.   52.      As regards the applicants' defence that they could not be punished on the ground that the offence had been brought about by undercover agents the Regional Court, considered the applicants' statements, the restricted statements of the police officers heard as witnesses, and the fact that the defence considered the evidence to be correct (Als-wahr-Unterstellung).   As a result the Court concluded that W. was a police informer of the Bavarian Office of Criminal Investigation and "Hans" either also a police informer or an official of this Office.   53.      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:   <Translation>   "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 in 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 cannot therefore be said here that there was instigation of the accused 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 <P.> in dessen Halbweltmilieu die Angel nach potentiellen Falschgeldhändlern auswarf.   Indes kann auf ein solches Vorgehen bei gefährlicher 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 Zeitpunkt, als <W.> und 'Hans' konkret als vorgebliche Falschgeldabnehmer in Aktion traten, hatte der Angeklagte <R.> schon über einen langen Zeitraum zahlreiche Eigenaktivitäten entwickelt - <P.> 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."   54.      In its legal assessment the Regional Court stated that, under the rule of law (Rechtsstaatsprinzip), the applicants' conviction was not precluded by the activities of the undercover agents.   The applicants' general determination to commit the offence had only been given a concrete form by making them believe that they had a wealthy client.   There had been no paramount influence of the undercover agents on the criminal activities in the present case.   In any event, even if the limits permitted for activities of undercover agents had been exceeded, this would not hinder the criminal proceedings instituted against the applicants.   Rather it could only lead to a substantial reduction of punishment.   In the present case it could not be said that there was an overly powerful (übermächtig) influence by the undercover agents.   55.      In fixing the sentences the Court considered as mitigating circumstances that the offences committed by the applicants had been strongly supported by the undercover agents.   5.       Appeal proceedings   56.      On 1 July 1986 the Federal Court of Justice (Bundesgerichts- hof) dismissed the applicants' appeals on points of law (Revisionen). This Court found that the police 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 had sufficiently taken into account the activities of the prosecution authorities when determining the sentences.   57.      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.   The Constitutional Court considered that the use of undercover agents, either police officers or police informers, could, if at all, only in exceptional cases bar criminal proceedings. It stated that the use of police informers was necessary for combating the most dangerous crimes such as, inter alia, counterfeiting of money.   In the present case, the circumstances as a whole did not disclose any reason why the rule of law should preclude the applicants from being prosecuted.   The first applicant had not directly been 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.   Both applicants had well been in control of their decisions.   58.      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.   6.       Criminal investigations conducted against W.   59.      From the Government's submissions at the hearing before the Commission on 8 December 1988 and documents subsequently submitted by the applicants on 30 June 1989 it transpires that in 1985 criminal investigations were conducted against W. on suspicion of counterfeiting money.   On 31 October 1985 the Munich Public Prosecutor's Office requested the Bavarian Office of Criminal Investigation to interrogate W.   On 11 November 1985, W. was interrogated as to his particulars.   60.      On 20 December 1985 the Munich Public Prosecutor's Office inquired about the exact date when W. had informed the Office about the first applicant's involvement in counterfeit money and whether there were any indications as to whether originally W. had approached the first applicant, or vice versa.   On 27 June 1986 the Bavarian Office replied that W. had filed a report on "Persons offering counterfeit money in the Aachen area <second applicant>" ("Falschgeld- anbieter aus dem Raum Aachen <P.>").   The second applicant had approached W. and not vice versa.   W. had only reacted to an offer of the second applicant.   W. and the second applicant had met for the first time between 10 and 16 January 1983.   61.      On 9 July 1986 the Munich Public Prosecutor's Office decided to terminate the proceedings.   It noted that while W. had not replied to the charges, the statements of the first applicant contradicted the results of the police inquiries.   According to the latter, originally the first applicant had approached W., and not vice versa.   B.       Relevant domestic law and practice   62.      Section 146 para. 1 of the German Penal Code (Strafgesetzbuch) defines counterfeiting of money as follows:   <Translation>   "A prison sentence of not less than two years shall be imposed on any person who:   1.       Forges money with the intention of bringing it into circulation as true or of enabling such circulation, or who falsifies money with the intention of making it appear to have a higher value,   2.       Supplies counterfeit money with such an intention,   3.       Circulates as true counterfeit money which has been forged, falsified or supplied under the conditions enumerated in sub-paras. 1 or 2."   <German>   "Mit Freiheitsstrafe nicht unter zwei Jahren wird bestraft, wer   1.       Geld in der Absicht nachmacht, daß es als echt in den Verkehr gebracht oder daß ein solches Inverkehrbringen ermöglicht werde, oder Geld in dieser Absicht so verfälscht, daß der Anschein eines höheren Wertes hervorgerufen wird,   2.       falsches Geld in dieser Absicht sich verschafft oder   3.       falsches Geld, das er unter den Voraussetzungen der Nummern 1 und 2 nachgemacht, verfälscht oder sich verschafft hat, als echt in den Verkehr bringt."   63.      Sections 48 to 71 of the German Code of Criminal Procedure (Strafprozessordnung) govern the hearing of witnesses.   Section 55 provides:   <Translation>   "1.   Every witness may refuse to give information to such questions the reply to which could bring about the danger for him or a relative mentioned in Section 52 that he will be prosecuted on account of a criminal offence or a regulatory offence.   2.   The witness must be told about his right to refuse to give information."   <German>   "1.   Jeder Zeuge kann die Auskunft auf solche Fragen verweigern, deren Beantwortung ihm selbst oder einem der in § 52 Abs. 1 bezeichneten Angehörigen die Gefahr zuziehen würde, wegen einer Straftat oder einer Ordnungswidrigkeit verfolgt zu werden.   2.   Der Zeuge ist über sein Recht zur Verweigerung der Auskunft zu belehren."   64.      Sections 151 to 177 of the Code of Criminal Procedure regulate the principles of criminal prosecution and the preparation of the indictment.   Section 160 provides in particular that the Public Prosecutor's Office, as soon as it gets knowledge of the suspicion that a criminal offence has been committed, has to investigate the facts in order to decide whether to prefer an indictment.   The Public Prosecutor's Office thereby does not only have to establish the evidence against the suspected person, but also the evidence in his favour.   According to Section 163 para. 1 the police services and officials have to investigate criminal offences and take all urgent measures to prevent collusion in a case.   65.      Sections 226 to 275 govern the trial before the court.   As regards the taking of evidence, Section 244 paras. 2 and 3 provide that the court, in order to establish the truth, has to take evidence as regards all facts relevant for its decision.   A request to take evidence has to be refused if