FIFTH SECTION

CASE OF FURCHT v. GERMANY

(Application no. 54648/09)

JUDGMENT

STRASBOURG

23 October 2014

FINAL

23/01/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Furcht v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 30 September 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 54648/09) 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 a German national, Mr Andreas Furcht (“the applicant”), on 9 October 2009.

2. The applicant was represented by Mr R. Birkenstock, a lawyer practising in Cologne. The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice.

3. The applicant alleged, in particular, that the criminal proceedings against him had been unfair and in breach of Article 6 § 1 of the Convention because he had been convicted of offences incited by the police.

4. On 14 October 2013 the complaint concerning the alleged unfairness of the criminal proceedings against the applicant was communicated to the Government and the remainder of the application was declared inadmissible by the President of the Section, sitting in a single-judge formation.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1961. When lodging his application, he was detained in Hagen Prison. He was released on 12 July 2011.

A. The investigation proceedings

6. On 18 October 2007 the Aachen District Court authorised criminal investigations against S. and five other persons (not including the applicant) to be conducted by up to five undercover police officers, in accordance with Article 110a § 1 no. 1 and Article 110b § 2 no. 1 of the Code of Criminal Procedure (see paragraphs 24-25 below). Criminal investigation proceedings on suspicion of drug trafficking had previously been instituted against the six suspects. Prior to the District Court’s order, the police’s suspicion against the suspects had been confirmed, in particular, by information obtained via telephone tapping and police surveillance of the suspects.

7. The police decided to attempt to establish contacts between S. and the undercover agents via the applicant, a good friend of S. and business partner for real estate transactions. The applicant, who had no criminal record, was not, at that time, suspected of any involvement in drug trafficking.

8. From 16 November 2007 onwards, two undercover police officers, P. and D., established contacts with the applicant. They visited him in the restaurant he ran and pretended to be interested in purchasing real property for running a club. In the following weeks the applicant made a number of offers of real property to the undercover agents and visited the estates with them.

9. The applicant subsequently established contacts between the two undercover agents and S. for organising an international contraband trade in cigarettes after one of the undercover agents had pretended to have a suitable lorry at hand for transporting the cigarettes abroad. S. refused, however, to communicate directly with undercover agent P. by telephone and proposed to further communicate via the applicant. When undercover agent D. disclosed to the applicant on 23 January 2008 that he considered that the risk of being caught with smuggling cigarettes was too high compared to the possible profits, the applicant disclosed that they (that is, S. and others and himself) would also traffic in cocaine and amphetamine. He stated that he did not want to be involved in the drug trafficking itself, but would only draw commissions. The undercover agents showed interest in transporting and purchasing drugs.

10. However, on 1 February 2008 the applicant, having been telephoned by undercover agent P., explained to P. that he was no longer interested in any business other than the restaurant he ran.

11. On 7 February 2008 the Aachen District Court, having regard to the applicant’s submissions to undercover agent D. on 23 January 2008, extended the court order of 18 October 2007 authorising investigations so as to cover also the applicant.

12. On 8 February 2008 undercover agent P. visited the applicant in his restaurant and dispersed the applicant’s suspicions against the undercover agents as well as his fear of having to serve a prison sentence in case the drug deal was discovered. The applicant thereupon continued arranging two purchases of drugs (cocaine and amphetamine) by the undercover agents from S. on 16 February 2008 (10 kilograms of amphetamine paste and 40 grams of cocaine) and on 12 March 2008 (some 250 kilograms of amphetamine paste). On the latter day, the applicant and S. were arrested after the delivery of the drugs to the undercover agents. The applicant would have received a commission of more than EUR 50,000 from S. for having arranged the second contract between S. and the undercover agents.

B. The proceedings before the Aachen Regional Court

13. On 22 October 2008 the Aachen Regional Court convicted the applicant of two counts of drug trafficking and sentenced him to five years’ imprisonment.

14. The Regional Court, having established the facts as described above (see paragraphs 6-12), noted that the applicant had confessed to the offences in the hearing. It had further read out in the hearing the written reports of undercover agents D. and P., drawn up throughout the undercover measure, with the consent of the parties. It noted that the applicant had accepted that these reports were essentially correct. It considered that the applicant’s allegation that it had been undercover agent D. and not himself who had first come up with the possibility of drug trafficking on 23 January 2008, and that he had only responded to that proposal, had not been proven. It noted in that context that the undercover agents had been careful throughout the investigations not to propose illegal business transactions or specific types or amounts of drugs first, but had waited for their respective counterparts to make the first step before becoming more concrete themselves.

15. In fixing the sentence, the Regional Court considered the considerable quantities of drugs trafficked as an aggravating factor. However, there were considerable elements leading to a mitigation of the sentence, which had to be considered as relatively mild in view of the amount of drugs trafficked. The applicant had in essence confessed to the offences and did not have any prior convictions. He had further trafficked mainly amphetamine, which was not a hard drug. In view of the undercover agents’ involvement, there had also not been a risk that the drugs would freely circulate on the market.

16. The Aachen Regional Court further stated that it was a particularly weighty factor mitigating the sentence that the applicant had been incited (verleitet) by a State authority to commit offences. Prior to the undercover measure concerning him, there had not been any suspicion of involvement in drug trafficking against the applicant, who did not have a criminal record. The police had only known that the applicant was a friend of S., against whom there had been strong suspicions of involvement in drug trafficking, and that the applicant had already arranged the sale of real estate together with S. The Regional Court considered that, nevertheless, the applicant had not been instigated (angestiftet) to commit the offences at issue. The undercover agents had waited for the applicant to raise the possibility of arranging an international contraband trade in cigarettes when the arrangement of a real estate transaction had not been successful. The agents had again waited for the applicant to raise the possibility of drug trafficking after the undercover agents had made him understand that they considered that the risk of being caught with smuggling cigarettes was too high compared to the possible profits.

17. Moreover, the Regional Court stressed that the applicant had then renounced any drug business on 1 February 2008 for fear of punishment. However, the undercover agents nevertheless contacted the applicant again on 8 February 2008, when the court order authorising recourse to undercover agents had been extended so as to cover also the applicant, and dispersed his doubts. The Regional Court considered that the way in which the undercover measure had been organised, that is, by contacting the applicant, a person not suspected of an offence, in order to establish contacts with suspect S., had entailed a risk, from the outset, that the applicant became implicated in drug trafficking.

18. The Regional Court further found that the applicant’s involvement in the offences had been less important than that of S., as he had only arranged contacts between S. and the undercover agents and had shielded off S. against them. The applicant obviously did not have any contacts with the drug scene apart from his contacts with S.

C. The proceedings before the Federal Court of Justice

19. The applicant subsequently lodged an appeal on points of law against the Regional Court’s judgment. He complained, in particular, that he had been incited by the police to commit the offences he had later been found guilty of. This had breached the rule of law. There was, therefore, a bar to the criminal proceedings against him, which should have been discontinued.

20. On 8 April 2009 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. The decision was served on the applicant’s counsel on 20 April 2009.

D. The proceedings before the Federal Constitutional Court

21. On 12 May 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court. Relying, inter alia, on Article 6 § 1 of the Convention and on the corresponding provisions of the Basic Law, the applicant complained that he had not had a fair trial. He argued that the undercover agents had incited him to commit drug offences which he would not have committed otherwise. The use of the evidence obtained thereby in the criminal proceedings against him had rendered these proceedings unfair.

22. On 28 May 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the judgment of the Aachen Regional Court and the decision of the Federal Court of Justice without giving reasons (file no. 2 BvR 1029/09). The decision was served on the applicant’s counsel on 3 June 2009.

E. Subsequent developments

23. On 16 June 2011 the Aachen Regional Court ordered the applicant’s conditional release on 12 July 2011 after the applicant had served two thirds of his sentence.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Provisions on undercover agents

24. Under Article 110a § 1 no. 1 of the Code of Criminal Procedure, undercover investigators may be used to investigate criminal offences if there are sufficient factual indications showing that a criminal offence of considerable significance has been committed in the field of illegal trade in drugs. Their intervention is only admissible if the investigation would offer no prospects of success or be considerably more difficult otherwise. Undercover investigators are police officers who investigate using a longer-lasting changed identity conferred on them (so-called legend; see Article 110a § 2 of the Code of Criminal Procedure).

25. Article 110 b § 2 no. 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 the court.

B. Relevant case-law of the Federal Court of Justice

26. 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 he was indicted of 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 ss., § 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 v. Lithuania [GC], no. 74420/01, ECHR 2008).

27. In order to determine whether the limits of an admissible incitement to commit an offence were respected, the Federal Court of Justice, in its well-established case-law, considered it necessary that the following aspects be taken into account: the reason and extent of 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 contributions to the offence of his or her own of the person concerned. Having regard to these criteria as a whole, the criminal court has 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, file no. 1 StR 148/84, judgment of 23 May 1984, BGHSt 32, pp. 345 ss., § 7).

28. In a number of decisions, interventions by agents provocateurs had been considered unlawful already if, at the time of the agent provocateur’s intervention against the person concerned, there had not been a suspicion of involvement in serious offences such as drug trafficking against that person (see Federal Court of Justice, file no. 1 StR 453/89, decision of 29 August 1989, § 3; and file no. 1 StR 221/99, cited above, § 15 with further references and § 51).

29. As to the consequences 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 (so-called fixing of penalty approach (Strafzumessungslösung); see Federal Court of Justice, file no. 1 StR 148/84, cited above, §§ 10-35; file no. 1 StR 453/89, cited above, § 4; file no. 1 StR 221/99, cited above, §§ 13, 18; confirmed in file no. 5 StR 240/13, cited above, § 37).

30. 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 evidence obtained by the prohibited measure of investigation (see Article 136a of the Code of Criminal Procedure). Moreover, applying a bar to the criminal proceedings would disregard the rights of 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 have 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 should establish this in the reasoning of the judgment and had to mitigate the sentence in a measureable manner (see Federal Court of Justice, file no. 1 StR 221/99, cited above, §§ 47 and 56).

31. 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, 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 at issue or excluding the evidence obtained by the agents’ intervention (ibid., §§ 36-46 and 57-61).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

32. The applicant complained that the criminal proceedings against him had been unfair as he had been convicted of drug offences which he had been incited to commit by undercover police officers and essentially on the basis of the evidence obtained by that entrapment. He 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 ...”

33. The Government contested that argument.

A. Admissibility

34. The Court observes that in its judgment convicting the applicant of drug trafficking, the Regional Court found that the applicant had been incited by a State authority to commit offences and mitigated the applicant’s sentence because of that incitement. Therefore, the question arises whether the applicant lost his status as a victim of a breach of Article 6 § 1 of the Convention, for the purposes of Article 34 of the Convention. In the Court’s view, the adequacy or otherwise of the authorities’ response to the impugned police measure must be considered in the light of the extent of the possible unfairness of the applicant’s trial as a result of that measure. The issue whether the applicant lost his victim status shall therefore be examined under the merits of the applicant’s complaint under Article 6 § 1.

35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Whether the criminal proceedings of the applicant were contrary to Article 6

(a) The parties’ submissions

(i) The applicant

36. The applicant submitted that the criminal proceedings against him had been unfair and in breach of Article 6 § 1 of the Convention.

37. The applicant considered that he had been instigated by undercover agents to commit the offences he had later been convicted of. He submitted that at the time when the undercover agents started their investigations and established contacts with him, the court order of 18 October 2007 concerning their intervention had not authorised their acts against him, but had only covered S. and five other suspects. He did not have a criminal record and there had not been any suspicion of his having been involved in drug trafficking. This had expressly been confirmed by the Aachen Regional Court in its judgment.

38. The applicant argued that he had not been predisposed to commit drug offences. When contacted by the undercover agents, he had owned and had been running a restaurant in Aachen. The undercover agents, meeting him regularly for a long period of time, had then persistently induced him to participate in the offences at issue. After he had made numerous fruitless offers for sale of real estate to them, they had made him understand that they were interested in business of all kinds, provided that it was worth taking a high risk, which had made him reflect on drug deals. Despite the fact that he had clearly declared on 1 February 2008 not to be interested in any such business any longer, the undercover agents had re-contacted and again induced him to participate in the drug deal. The undercover agents thus had even continued inciting him to commit the o