CEDH · CASELAW;CLIN;ENG — 11 septembre 2006

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Germany (dec.) - 22007/03 Decision 11.9.2006 [Section V] Article 6 Article 6-3-d Examination of witnesses Impossibility to examine in person the main witness for the prosecution as the authorities had prohibited him from testifying in court: inadmissible   In 2001, upon the assistance of an informer of the Land Office of Criminal Investigation, the applicant was arrested and taken into detention on remand on suspicion of having trafficked in drugs. In 2002 the trial on charges of drug trafficking was opened against the applicant and two co-defendants. The informer could not be heard as a witness in person as the Land Ministry of Interior refused him permission to testify for fear of reprisals from the drug dealers. However, he answered in writing the applicant’s questions transmitted to him via his supervisor from the police. In his written statements read out at the hearing, the informer submitted that while paying a visit to his friend in Romania he had met various persons who had proposed to sell drugs to him. Following this visit and while back in Germany, he had met the applicant who had offered and then delivered him ecstasy tablets. The informer refused to disclose the identity of his friend, also for fear of reprisals. The applicant’s lawyer requested the court to interrogate the informer as to the identity of his friend and to question this friend as a witness, as it would enable him to prove the illegal provocation of the drug deal on the instructions of the German police. This motion was dismissed by the court as it would have led to the disclosure of the informer’s identity which would have been detrimental to the welfare of the Federal Republic or the Land . In July 2002, the applicant was convicted of joint drug trafficking and sentenced to a term of imprisonment. The court based its findings of fact on the applicant’s confession and those of his two co-defendants as well as on the evidence given by two eye-witnesses who had been refused permission to testify. In assessing their credibility the court took into account the oral statements made by the police officer   supervising them. In fixing the applicant’s sentence the court took into consideration as a mitigating factor that the drug deal had been monitored by the police from the outset so that it was not very likely that the drugs could ever be circulated. The Court found convincing the court’s arguments as to the necessity of the restriction imposed on the applicant’s defence rights and as to the lack of legal means to force the informer to give further evidence due to the prohibition for him to testify. Moreover, the handicaps in question had been counterbalanced in part by the court by making the informer answer the applicant’s questions in writing. Although the informer had been the main witness for the prosecution, the applicant’s conviction had not been based to a decisive extent on his statements. The domestic courts’ findings had, in fact, been based on the applicant’s confession and that of his two co-defendants. Without examining the informer it had not been possible to establish whether and if so, to what extent, the drug deal had been provoked by him, this question being a decisive factor for the fixing of a sentence corresponding to the applicant’s guilt. However, the domestic courts had treated cautiously the written evidence given by the informer and expressly questioned the police officer supervising him in order to assess his credibility. Having regard to the way in which the evidence had been taken in the proceedings as a whole, the rights of the defence had not been restricted to an extent incompatible with the guarantees of Article   6(1) and (3) (d): manifestly ill-founded .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes