CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 octobre 2020

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margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s9B421325 { width:133.06pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s9C6A147F { width:184.21pt; display:inline-block }     FIFTH SECTION         CASE OF AKBAY AND OTHERS v. GERMANY   (Applications nos. 40495/15 and 2 others)       JUDGMENT   Art 34 • Victim • Transferability of an Art 6 complaint of entrapment of applicant’s husband who had died before application was lodged before the Court • Potential violation of Article 6, based on unlawful police incitement, providing applicant with sufficient moral interest in bringing an application on her own behalf • Potential compensation claim under Article 41 not constituting sufficient material interest • Case raising issues of general interest concerning the legal system and practice of the respondent State Art 6 § 1 (criminal) • Fair hearing • Non-exclusion of evidence linked to direct and indirect police incitement to commit drug offences • Criteria for establishing indirect incitement • Domestic courts’ failure to draw necessary inferences from their finding that first and second applicants had been incited to commit an offence • No issue regarding third applicant whose activity was not determined by the police’s conduct   STRASBOURG   15 October 2020   FINAL   15/01/2021     This judgment has become final under Article 44 § 2 of the Convention. In the case of Akbay and Others v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President ,   Gabriele Kucsko-Stadlmayer,   Mārtiņš Mits,   Latif Hüseynov,   Lado Chanturia,   Anja Seibert-Fohr,   Mattias Guyomar, judges , and Victor Soloveytchik, Section Registrar , Having regard to: the applications (nos.   40495/15, 40913/15 and 37273/15) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Ms Yıldız Akbay (“the first applicant”), Mr   Hakki Soytürk (“the second applicant”) and Mr   Dervıs Usul (“the third applicant”), on 11 August 2015 (applications nos. 40495/15 and 40913/15) and on 24 July 2015 (application no. 37273/15); the decision to give notice to the German Government (“the Government”) of Ms Yıldız Akbay’s complaints under Article 6 of the Convention, and to declare the remainder of application no. 40495/15 inadmissible; the decision to give notice of applications nos. 40913/15 and 37273/15 to the Government; the letters of 19 May 2017 and 4 July 2017 to the Government of Turkey informing them of their right under Article 36 § 1 of the Convention to intervene in the proceedings; the Turkish Government did not indicate within the time allowed that they wished to exercise that right; the observations submitted by the respondent Government and by the second applicant, the first and third applicants’ observations having been submitted outside the time-limit set and therefore not included in the case file; Having deliberated in private on 22 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns the conviction of the first applicant’s husband (N.A.) and of the second and third applicants for drug offences committed in the context of a drugs importation on which the State had exerted influence. The domestic courts found that N.A. and the second, but not the third, applicant had been incited by State authorities to commit the offences. They therefore considerably reduced N.A.’s and the second applicant’s sentences and also generally mitigated the sentence imposed on the third applicant. The applicants submitted, in particular, that their right to a fair trial under Article 6 § 1 of the Convention had been violated as N.A. and the second and third applicants had been convicted of offences incited by the police. THE FACTS 2.     The first applicant, Ms Yıldız Akbay, was born in 1977 and lives in Berlin. She was represented before the Court by Mr   S.   Conen, a lawyer practising in Berlin. The second applicant, Mr Soytürk, was born in 1965. At the time of lodging his application, he was detained in prison in Großbeeren. He was represented by Mr   C.   Noll, a lawyer practising in Berlin. The third applicant, Mr   Usul, was born in 1969 and lives in Berlin. He was represented by Mr   D.   Lammer, a lawyer practising in Berlin. 3.     The Government were represented by one of their Agents, Mr   H. ‑ J.   Behrens, of the Federal Ministry of Justice and Consumer Protection. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The investigation proceedings 5 .     In September 2009, a criminal informant informed the Bremen customs authorities that N.A. was alleged to be dealing heroin (several kilograms) from a café in Berlin. Subsequent telephone surveillance, which revealed discussions in coded language about larger sums of money, neither confirmed nor fully dispelled the suspicions against N.A., who did not have a criminal record. The Berlin police, having obtained the authorisation of the Berlin public prosecutor’s office , therefore asked a different criminal informant, M., to make investigations. The informant was to be reimbursed for his expenses and to be paid a fee for each day of work, as well as a bonus dependent on the quantity of drugs seized. 6.     Following regular visits to the café run by N.A. from November 2009, during which the informant got to know N.A., the informant asked N.A. in February 2010 about whether he would be interested in trafficking heroin. The informant explained, in accordance with the instructions of the investigation authorities, that he could import drugs via the port of Bremerhaven in containers and remove them from the port area, bypassing customs inspection, with the help of a dock worker, K. N.A. replied that he did not want to have anything to do with heroin, but that hashish and cocaine were a different matter. 7.     In May 2010 the informant offered to introduce N.A. to the dock worker, who was prepared to work with N.A. Although N.A. agreed to meet the dock worker and alleged that he had contact persons in place and the financial means to import cocaine, he did not in fact have either. Furthermore, he had made no such contacts for trafficking in heroin or cocaine when in August 2010 N.A., in response to the informant’s repeated offers, finally agreed to meet the dock worker, who was in fact a police agent working undercover, to discuss the procedure for importing drugs via the port. The informant and the dock worker were to be paid 50,000 euros (EUR) each for their services. N.A. was impressed by K.’s alleged influence at the port, and the seemingly easy way in which the drugs could be imported without risk of discovery, and told them that he would send someone to South America in order to prepare a cocaine shipment, without in fact having any such contact. 8.     Following that meeting, on 24 September 2010 the Berlin District Court authorised K. to work as an undercover police agent in accordance with Article   110b § 2 of the Code of Criminal Procedure (see paragraph   41 below). 9.     Subsequent attempts by N.A., who felt under pressure and honour-bound as a result of repeated statements made by the informant, to build up a network of contacts of persons capable of supplying drugs abroad failed, until the spring of 2011. N.A. had, inter alia , asked the third applicant, a friend, to build up a network of contacts of cocaine dealers via a person detained in Turkey, but the third applicant’s attempts to do so had failed. The investigation authorities were aware of N.A.’s failure to establish the necessary network of contacts in order to have cocaine delivered to the port of Bremerhaven. The informant, however, had repeatedly told his supervising police officers that N.A. was eager to pursue drug trafficking via the port. 10.     In May 2011, N.A. and the second applicant, another friend of his, met an acquaintance of the latter in the Netherlands whom N.A. had got to know shortly before by chance, and to whom he had spoken about possible drug deals. N.A. and the second applicant’s acquaintance, together with the latter’s contact persons, met and agreed to organise the importation of 100   kilograms of cocaine from South America, to be supplied by contact persons in the Netherlands. The drugs were to be imported via the port of Bremerhaven with the help of the dock worker, K., which appeared to be a safe route for importing drugs. The second applicant was the contact person between N.A. and the group of persons in the Netherlands. K. subsequently dismissed N.A.’s doubts concerning the shipment. 11 .     On 17 August 2011 almost 100 kilograms of cocaine was delivered in a container to the port of Bremerhaven. On 18 August 2011 N.A. and K. fetched the drugs from the container in the port and took them to a flat which N.A. had rented for that purpose with K.’s help. As agreed with N.A., the third applicant, whom N.A. had previously recruited to transport the drugs from Bremerhaven to Berlin, went to the flat to pick up the drugs. N.A. and the second and third applicants were arrested the same day. The proceedings before the Regional Court 12 .     On 7 November 2012 the Berlin Regional Court convicted N.A. of illicit importation of and trafficking in drugs and sentenced him to four years and five months’ imprisonment. The second applicant was convicted of aiding and abetting the drug offence committed by N.A. and sentenced to three years and seven months’ imprisonment. The third applicant was found guilty of illicit possession of drugs entrusted to him by N.A., and of aiding and abetting drug trafficking, and was sentenced to four years’ imprisonment. Two further co-defendants were also given prison sentences for their participation in the drug offence in question. 13 .     The Regional Court, having established the facts as described above (see paragraphs 5-11), based the convictions of N.A. and of the second and third applicants essentially on their confessions at the hearing. 14.     The Regional Court observed that it had not been possible to question the police informant, M., as a witness at the hearing, only his supervising police officers. In so far as the informant had described the course of events, and in particular the extent of his influence on N.A., in a substantially different manner to N.A. in his reports to the supervising police officers, the court noted that the testimony at the hearing of the supervising police officers regarding these reports was of little probative value. Furthermore, it could not be ruled out that the informant, who moved in criminal circles, had induced N.A. to traffic cocaine owing to the considerable bonus he would receive if N.A. were found guilty. In its assessment of the evidence, the court had therefore only taken into account the informant’s statements as an additional source of information, in particular with regard to the chronology of the events, to the extent that they had not contradicted N.A.’s statements. This had not caused any disadvantage to the defendants. 15 .     Likewise, other evidence, such as the statement of the undercover police agent, K., via video-conference, had only been considered information complementing the defendants’ confessions. The Regional Court clarified that there was no bar to using evidence obtained by K. at his first meeting with N.A. in August 2010 when the District Court had not yet authorised him to work as an undercover police agent under Article 110b §   2 of the Code of Criminal Procedure (see paragraph 41 below). In accordance with established practice, a police officer working undercover could have up to three contacts with a suspect prior to a court order becoming necessary under that provision. 16 .     The Regional Court found that N.A. had been incited to commit the offence of which he had been found guilty, in breach of the rule of law. There had therefore been a breach of his right to a fair trial under Article   6 §   1 of the Convention. It found that, despite the fact that N.A. did not have a criminal record, there had been sufficient suspicions of drug trafficking against him at the outset of the undercover operation, following the information given by a police informant and the results of telephone surveillance. However, the police informant had subsequently both considerably tempted N.A. and exerted pressure on him over a very long period of time, partly in breach of the instructions given by the supervising police officers to remain passive. 17 .     Moreover, the investigation authorities had created a considerable incentive for the commission of the offence by presenting a seemingly safe route for importing drugs via the port of Bremerhaven. It might only have been the existence of this safe route which had put N.A. in a position to enter into contact with a cocaine supplier, as he had not had any such contacts before. Furthermore, that safe route and the money to be paid to the informant and to the undercover agent for their help (EUR 50,000 each) had induced N.A. to traffic a large amount of drugs, which had gone considerably beyond the offences of which N.A. had initially been reasonably suspected following telephone surveillance. 18 .     With regard to the second applicant, who had not previously been involved in drug offences (he had two previous convictions for traffic offences), the Regional Court found that he had also been unlawfully incited to commit his offence, and that his right to a fair trial under Article   6 § 1 of the Convention had therefore likewise been violated. Even though the investigation authorities had only exerted indirect influence on him, he had taken part in the drug importation precisely because, as a result of the investigation authorities’ influence on N.A., it had appeared safe to him as well. N.A. had described the route for importing the drugs in detail to the second applicant, arguing that it was safe and very valuable as his influential contact person, K., could bypass all checks at the port. The police had further confirmed that they had assumed that N.A. would not carry out the drug importation alone, but would have people helping him, who could likewise be inclined to participate owing to the seemingly safe importation route. 19 .     As for the third applicant, who did not have any previous convictions in Germany, but one conviction from 2007 in the Netherlands for drug trafficking, the Regional Court considered that he had not been incited to commit his offence and that Article 6 § 1 of the Convention had not been violated in respect of him. The court found that the third applicant had initially hesitated to participate in the drug operation, but had felt obliged towards his friend, N.A., who had also told him about the seemingly safe importation of drugs via the port of Bremerhaven. He had hoped to earn several thousand euros for transporting the drugs from the flat in Bremerhaven to Berlin. However, the court considered that the third applicant’s decision to transport the drugs had not been influenced by the fact that the route for importing them, as described to him by N.A., had appeared safe. The investigation authorities had thus not had any influence on the drugs’ transportation. 20 .     In view of the case-law of the Federal Court of Justice (see paragraphs 46-50 below), which had itself had regard to the case-law of the European Court of Human Rights, the Regional Court refused to discontinue the criminal proceedings against the defendants because of the unlawful incitement to commit the offences in question. Instead, it took the incitement into account when fixing the sentences (the so-called “fixing of penalty” approach ( Strafzumessungslösung )). 21 .     The Regional Court therefore reduced N.A.’s sentence by at least five years and seven months; it stated that without the incitement it would have fixed a sentence of not less than ten years. When fixing the second applicant’s sentence of three years and seven months’ imprisonment, the Regional Court equally took into account as a mitigating factor, in particular, the indirect unlawful entrapment in respect of him. It stated that without that entrapment, it would have fixed a term of imprisonment of not less than seven years. As for the third applicant, the Regional Court only took into account the State’s influence on the commission of the drug operation as a whole as a general mitigating factor when fixing his sentence. The proceedings before the Federal Court of Justice 22.     In their appeal on points of law against the Regional Court’s judgment, N.A. and the second and third applicants submitted that in view of the nature of the entrapment, which constituted a particularly serious breach of the rule of law, the proceedings against them should have been discontinued. The second applicant submitted, in the alternative, that in line with the case-law of the European Court of Human Rights, all the evidence obtained as a result of the entrapment, including his confession, should have been excluded and that, as a consequence, he should have been acquitted. The second and third applicants further submitted that the participation of the undercover agent in the police operation had not complied with Articles   110a and 110b of the Code of Criminal Procedure (see paragraphs   40-41 below), as the District Court’s authorisation had been obtained only after the agent’s first meeting with N.A. N.A. and the second and third applicants also argued that the recourse to an informant had not had a sufficient legal basis. 23 .     On 11 December 2013 the Federal Court of Justice dismissed N.A.’s and the second and third applicants’ appeals on points of law (file no.   5   StR   240/13). It confirmed the Regional Court’s finding that N.A. and the second applicant had been incited, contrary to the rule of law, to commit the offence in question, and that the proceedings against them had therefore not been fair, as required by Article   6 § 1 of the Convention. 24.     Referring to its well-established case-law (see, for more detail, paragraphs 46-50 below), it found, however, that the entrapment had not entailed the discontinuation of the criminal proceedings, but only a mitigation of the sentence. It explained that in accordance with the principles of the German law of criminal procedure, even a serious breach of the law through the use of one of the prohibited methods of investigation listed in Article 136a of the Code of Criminal Procedure (see paragraph 44 below) entailed only the exclusion of the evidence which had been obtained thereby. Discontinuing the proceedings could adversely affect the protection of third parties as well as the criminal law’s function of providing satisfaction. The proceedings before the Federal Constitutional Court AND SUBSEQUENT DEVELOPMENTS 25.     In their constitutional complaints of 29, 30 and 23 January 2014 respectively, N.A. and the second and third applicants submitted, in particular, that their constitutional right to a fair trial had been breached. They argued that the criminal courts, even though they had established that the drug offences had been incited in a way which had grossly violated the rule of law, had only compensated this, insufficiently, by mitigating their sentences instead of discontinuing the proceedings. In the second applicant’s view, he should, in the alternative, have been acquitted following the exclusion of all the evidence obtained by entrapment. N.A. and the second and third applicants submitted, in particular, that the Federal Court of Justice’s approach of solely mitigating the sentence in cases of unlawful incitement was not in line with the case-law of the European Court of Human Rights. N.A. further complained that he had been unable to cross-examine M. directly in the hearing before the Regional Court, in breach of Article   6 §   3   (d) of the Convention. 26 .     On 18 December 2014 the Federal Constitutional Court dismissed N.A.’s and the second and third applicants’ constitutional complaints, which it had joined (file nos.   2   BvR   209/14, 2   BvR   262/14 and 2   BvR   240/14). It found that the complainants’ constitutional right to a fair trial had not been breached by the criminal courts’ decisions. 27.     The Federal Constitutional Court considered that, even assuming that the incitement of an offence in breach of the rule of law could lead to a bar to the criminal proceedings, such a prohibition on enforcing the State’s entitlement to impose a punishment could only be derived from the principle of the rule of law in very exceptional cases. In such cases, it had to be taken into account that the principle of the rule of law did not only protect the interests of the accused, but also the public interest in a criminal prosecution which served substantive justice. 28.     Even though it would not have been unreasonable to conclude that the present situation constituted such a very exceptional case, it was acceptable, for the standards of constitutional law, for the criminal courts to have concluded that this had not been the case. 29.     The court considered that there had been sufficient grounds to institute investigation proceedings against N.A. at the outset. Moreover, N.A.’s criminal conduct had not exclusively remained within the framework set up by the investigation authorities. When the police informant had started exerting influence on N.A., he had been under suspicion of drug trafficking. N.A. had further stated in his first conversation concerning drugs with the police informant that he was prepared to traffic hashish and cocaine. Despite the constant influence the informant had exerted on N.A., N.A. had neither been threatened by the informant nor had the informant exploited a situation of distress in N.A. The fact that N.A. had taken an independent decision to commit the offence was illustrated by the fact that the actual offence had stemmed from a random meeting between N.A. and an acquaintance of the second applicant in the Netherlands. When N.A. had realised the possibility of carrying out the drug offence presented by this meeting, he had pursued his decision to commit the offence with considerable criminal energy. This held all the more true for the second and third applicants, who had been influenced only indirectly. The considerable degree of personal guilt incurred by them had to be taken into account in accordance with the principle of substantive justice. 30 .     Furthermore, even when taking into account the case-law of the European Court of Human Rights on entrapment, there had been no breach of the constitutional right to a fair trial. The violation of Article 6 § 1 of the Convention in the investigation proceedings had been sufficiently compensated for by the criminal courts. 31.     The Federal Constitutional Court noted that the European Court of Human Rights had a different dogmatic approach to cases of entrapment in that it focused on the admissibility of conducting a trial at all and the admissibility of evidence (in cases including, inter alia , Ramanauskas v.   Lithuania [GC], no. 74420/01, ECHR 2008; Prado Bugallo v. Spain , no.   58496/00, 18 February 2003; and Furcht v. Germany , no. 54648/09, 23   October 2014), unlike the Federal Court of Justice with its so-called “fixing of penalty” approach. 32.     In particular, for the European Court of Human Rights, the public interest could not justify the use of evidence obtained as a result of police incitement (ibid.). The domestic legal system did not, however, necessarily need to follow the same dogmatic approach. It could implement the requirements under Article 6 § 1 of the Convention in a different manner in the national legal system as long as it ensured that the substantive requirements of a fair trial were met. 33.     At least in the way in which it had been applied in the present case, the “fixing of penalty” approach had not violated the constitutional right to a fair trial, also having regard to the requirements of Article 6 § 1 of the Convention. 34 .     The Regional Court had expressly acknowledged a breach of Article   6 §   1 of the Convention. It had further reduced N.A.’s and the second applicant’s sentences in a considerable and quantifiable manner (see paragraph 20 above). Its findings had been upheld by the Federal Court of Justice. Both courts had adopted their decisions prior to the delivery of the judgment of the European Court of Human Rights in the case of Furcht (cited above). 35.     Furthermore, the way in which the Regional Court had assessed the evidence had to be taken into account. It had based its findings of fact primarily on the – essentially identical – credible confessions made at the trial by N.A., the second and third applicants and two other defendants. It had not relied on further evidence to make findings to the detriment of the defendants to which the latter had not themselves confessed. In particular, despite the fact that the Regional Court had not excluded the evidence given by the police informant, that court had not relied on the statements made by the informant or the investigating police officers to the defendants’ disadvantage, but only to supplement existing evidence and to clarify the extent of the influence exerted by the informant on N.A. Therefore, the way in which the Regional Court had assessed the evidence came close, in substance, to an exclusion of the incriminating evidence provided by the police informant and the undercover agent. 36 .     In the Federal Constitutional Court’s view, the case before it differed in this respect from the case in Furcht (cited above), in which the statements made by the undercover agents had been used to disprove the defendant’s statements in important respects. 37.     The Federal Constitutional Court further noted that, having regard to the case-law of the European Court of Human Rights, the criminal courts would nevertheless have to consider whether, in comparable cases, the use of evidence directly obtained by entrapment in breach of the rule of law (in particular evidence given by the witnesses directly involved in the entrapment) should be excluded. 38.     The Federal Constitutional Court’s decision was served on the second applicant’s counsel on 11 February 2015 and on N.A.’s and the third applicant’s counsel on 12 February 2015. 39.     N.A. died on 3 June 2015. RELEVANT LEGAL FRAMEWORK AND PRACTICE Code of Criminal Procedure Provisions regarding covert police investigations 40 .     Under Article 110a § 1 (1) of the Code of Criminal Procedure, undercover investigators may be used to investigate criminal offences if there are sufficient factual indications that a criminal offence of considerable significance has been committed in the field of illegal drug trafficking. Their intervention is only permitted if the investigation would offer no prospects of success or be considerably more difficult otherwise. Undercover investigators are police officers who investigate using a changed identity which has been given to them over an extended period (a so-called legend; see Article   110a § 2 of the Code of Criminal Procedure). 41 .     Article 110 b § 2 (1) of the Code of Criminal Procedure provides that interventions of undercover investigators which are directed against a specific suspect have to be authorised by a court. 42 .     The use of police informants is not specifically addressed in the Code of Criminal Procedure, but falls under the general provisions of Articles 161 and 163 of the Code of Criminal Procedure authorising the police and the public prosecutor’s office to investigate criminal offences. 43 .     Annex D to the Guidelines on criminal and summary proceedings ( Richtlinien für das Strafverfahren und das Bußgeldverfahren ), which are addressed to the prosecution authorities, contains rules regarding informants, in particular rules on assurances of confidentiality. Provisions regarding the exclusion of evidence and bars to criminal proceedings 44 .     Article 136a of the Code of Criminal Procedure lays down the rules on, and consequences of, prohibited methods of interrogation. It provides, in particular, that the freedom of the accused to make decisions and to manifest his will is not to be impaired by methods such as, inter alia , ill ‑ treatment, induced fatigue, physical interference or the administration of drugs (Article 136a § 1). Statements obtained in breach of this prohibition are not to be used in evidence, even if the accused has agreed to their use (Article 136a § 3). 45 .     Under 260 § 3 of the Code of Criminal Procedure, following a trial hearing, criminal proceedings are to be discontinued by a judgment if there is a bar to the criminal proceedings. CASE-LAW OF THE FEDERAL COURT OF JUSTICE Case-law as developed before the judgment of the Court in Furcht 46 .     Under the Federal Court of Justice’s well-established case-law, the right to a fair trial under Article 6 § 1 of the Convention was breached if the accused had been induced to commit the offences of which he was indicted by an incitement contrary to the rule of law and imputable to the State (see Federal Court of Justice, file no. 1 StR 221/99, judgment of 18   November 1999, BGHSt 45, pp. 321 et seq., § 8 (of the internet version); confirmed by Federal Court of Justice, file no. 5 StR 240/13, judgment of 11 December 2013, §§ 33 et seq., referring to the Court’s judgment in Ramanauskas , cited above). 47.     In order to determine whether or not there had been an unlawful incitement to commit an offence, the Federal Court of Justice, in its well ‑ established case-law, considered it necessary to take the following aspects into account: the reason for and extent of the suspicion of involvement in the offences investigated, the manner and intensity of and the reasons for the influence exercised, the readiness of the person concerned to commit an offence and the extent of his or her own contributions to the offence. Having regard to these criteria as a whole, the criminal court had to determine whether the incitement by the agent provocateur was so serious as to outweigh the contribution of the person concerned (see Federal Court of Justice judgment no. 1 StR 148/84 of 23   May 1984, BGHSt 32, pp.   345 et seq., § 7). 48.     As to the inferences to be drawn from a finding of police incitement, under the Federal Court of Justice’s established case-law an incitement to commit an offence, even if it was contrary to the rule of law, did not constitute a bar to criminal proceedings. It only had to be taken into consideration – as a considerable mitigating factor – in the fixing of the penalty (the so-called “fixing of penalty” approach ( Strafzumessungs ­ lösung ); see Federal Court of Justice, file no. 1 StR 148/84, cited above, §§ 10-35; file no. 1 StR 453/89, decision of 29 August 1989, § 4; and file no.   1   StR   221/99, cited above, §§ 13 and 18, confirmed in file no.   5   StR   240/13, cited above, §   37). 49.     In the Federal Court of Justice’s view, under the law on criminal procedure, even a massive breach of the rules on prohibited measures of investigation only led to the exclusion of the evidence obtained by the prohibited measure (see Article 136a of the Code of Criminal Procedure, at paragraph 44 above). Moreover, applying a bar to the criminal proceedings would disregard the rights of the victims of the offence (see Federal Court of Justice, file no.   1   StR 221/99, cited above, §§   43-44, and file no. 5 StR 240/13, cited above, § 37). Taking into account the incitement by an agent provocateur as a considerable mitigating factor in the determination of the penalty further allowed the sentencing court to have regard to all the circumstances which had led to the offence in a reasonable manner (see   Federal Court of Justice, file no. 1 StR 148/84, cited above, § 31, and file no.   1   StR   221/99, cited above, §§ 41-42). If a breach of Article 6 of the Convention had occurred, the criminal courts had to establish this in the reasoning of the judgment and to mitigate the sentence in a measurable manner (see Federal Court of Justice, file no.   1   StR 221/99, cited above, §§   47 and 56). 50 .     The Federal Court of Justice considered that by applying the “fixing of penalty” approach, it was possible to afford the necessary redress for the breach of Article 6 of the Convention (see Federal Court of Justice, file no.   1 StR 221/99, cited above, §§ 18 et seq.). Referring to the case of Teixeira de Castro v. Portugal (9 June 1998, Reports of Judgments and Decisions 1998-IV), it took the view that, despite some indications to the contrary in the wording of the judgment, the Court’s case ‑ law did not require discontinuing the criminal proceedings against a person who had been incited by agents provocateurs working for the police to commit the offence in issue or excluding the evidence obtained through the agents’ intervention (ibid., §§   36-46 and 57-61). Case-law as developed after the judgment of the Court in Furcht 51 .     By a judgment of 10 June 2015, the Federal Court of Justice (Second Division), reversing its previous case-law, held that an incitement to an offence in breach of the rule of law by members of the investigation authorities or third persons directed by them, as a rule, led to a bar to the criminal proceedings, which therefore had to be discontinued (file no.   2   StR   97/14). 52.     The Federal Court of Justice argued that a reversal of its case-law was necessary in order to implement the Furcht judgment, according to which the “fixing of penalty” approach was not sufficient to redress a breach of Article 6 § 1 of the Convention resulting from incitement. 53.     The Federal Court of Justice noted that, according to Furcht , it was necessary either to exclude all the evidence obtained as a result of police incitement or to apply a procedure with similar consequences. This case-law could best be integrated into the German law of criminal procedure by a finding that an unlawful incitement led to a bar to the criminal proceedings instead of an exclusion of evidence. It noted that the impugned measure, incitement, did not concern only the acquisition of evidence, but resulted in the offence as a whole. Recognising a bar to the criminal proceedings followed as a direct consequence from the fact that an offence was incited and thus from the unlawful conduct of the investigation authorities. It led to the discontinuation of the proceedings in respect of that offence (see, in particular, Article 260 of the Code of Criminal Procedure, at paragraph 45 above). 54 .     In contrast, solely excluding the statements made by the agents provocateurs would often not lead to eliminating the results of incitement as required by the Court’s case-law because the sale of drugs was usually also observed by other police officers whose testimony would be sufficient to prove drug trafficking at the trial. THE LAW I.     JOINDER OF THE APPLICATIONS 55.     Having regard to the similar subject matter of the applications, which all concern the same criminal proceedings before the domestic courts, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court). II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 56.     The applicants complained that the criminal proceedings in issue had been unfair as N.A. and the second and third applicants had been convicted of drug offences which they had been incited to commit by the police. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility Standing of the first applicant to lodge the application 57.     In the Government’s submission, the first applicant did not have standing to lodge her application. She could not claim to be the victim of a violation of the Convention for the purposes of Article 34 of the Convention, which, in so far as relevant, provides: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ...” (a) The parties’ submissions (i)   The Government 58.     In the Government’s submission, the first applicant was not the direct victim of a breach of her own Convention rights, as the criminal proceedings in issue, in which Article 6 of the Convention had allegedly been breached, had not been brought against her personally, but against her husband. 59.     The Government further argued that the first applicant could not claim to be an indirect victim of the alleged breaches of her husband’s Convention rights. The potential direct victim, N.A., had died prior to the first applicant lodging her application with the Court. However, the strict requirements under the Court’s case-law for an applicant to have standing in these circumstances, namely an allegation of a serious breach of human rights (such as of the rights under Articles 2 or 3 of the Convention), had not been met. 60.     The Government took the view in that context that the admissibility requirement of victim status under Article 34 of the Convention had to be interpreted restrictively, as the Convention system was based on the protection of individual rights. The purpose of Article 34 was to prevent the institution of an actio popularis . 61 .     Moreover, the first applicant could not base her victim status on her own pecuniary interest arising from the fact that her husband had no longer been able to run his café following his detention and from potential claims under Article   41 of the Convention. Such pecuniary interests were only relevant where the direct victim had died after lodging the application. The first applicant had further not proven that there was a direct link between her husband’s financial ruin and his detention or conviction. His café had been a registered association which had not been allowed to make profit and he had been receiving unemployment benefits. 62.     Finally, there was no general interest in the adoption of a judgment in the present case despite the death of the direct victim. In particular, the Court had already dealt with the legal questions under Article 6 raised by the present application in the cases of Furcht v. Germany (no. 54648/09, 23   October 2014) and Scholer v.   Germany (no. 14212/10, 18 December 2014). Moreover, the Federal Court of Justice, in a recent judgment of 10   June 2015 (file no. 2 StR 97/14, see paragraphs 51-54 above), had implemented the Court’s findings in the case of Furcht by amending its case-law. (ii)   The first applicant 63.     In her application, the first applicant took the view that she had standing to lodge the application in her own name, for the purposes of Article   34 of the Convention. She claimed that she had a considerable moral and pecuniary interest in a finding that her deceased husband’s Convention rights had been breached. He had wished that an application to defend his rights be lodged with the Court. 64.     The first applicant submitted that she had a moral interest in obtaining justice for her deceased husband and to restore his reputation after his unjustified conviction as a drug dealer. 65.     The first applicant further submitted that the breach of Article 6 of the Convention in the criminal proceedings against her husband had had a direct effect on her pecuniary rights as his heir. She argued that as a result of her husband’s detention resulting from those proceedings, they had lost the café run by him and thus their main source of income. Moreover, a finding of a violation of Article 6 would lead to the possibility of a compensation claim under Article 41 of the Convention. 66.     There was further a considerable public interest in obtaining a judgment of the Court on the subject matter in issue. The Federal Constitutional Court had not implemented the Court’s judgment in the case of Furcht (cited above) in its decision on the first applicant’s husband’s constitutional complaint. (b) The Court’s assessment (i)   Relevant principles 67.     In order to lodge an application in accordance with Article   34 of the Convention, an individual must be able to show that he or she was “directly affected” by the measure complained of (see İlhan v. Turkey [GC], no.   22277/93, § 52, ECHR 2000 ‑ VII; Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008; and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 96, ECHR 2014). Moreover, in accordance with the Court’s practice and with Article 34 of the Convention, applications can only be lodged by, or in the name of, individuals who are alive (see Varnava and Others v. Turkey [GC], nos.   16064/90 and 8 others, § 111, ECHR 2009, and Centre for Legal Resources on behalf of Valentin Câmpeanu , cited above, §   96). 68.     In cases in which the direct victim of an alleged breach of the Convention has died, the Court has differentiated between applications where that victim died after he or she had lodged an application with the Court and those where he or she had already died beforehand. 69 .     Where the direct victim died before the application was lodged with the Court, the Court’s approach has generally been restrictive. It has usually declined to grant standing to any other person unless that person was able to either demonstrate a direct effect on his or her own rights or where the complaint(s) raised an issue of general interest pertaining to “respect for human rights” and the applicant(s) as heir(s) had a legitimate interest in pursuing the application (see, in particular, Marie-Louise Loyen and Bruneel v. France , no.   55929/00, §§ 21-31, 5 July 2005; Micallef v. Malta [GC], no.