AS TO THE ADMISSIBILITY OF
Application No. 12127/86
by J.A.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 15 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 April 1986
by J.A. against the Federal Republic of Germany and registered
on 7 April 1986 under file N° 12127/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
&_THE FACTS&S
The applicant is a German citizen, born in 1953 and presently
serving life imprisonment. He is represented by Mr. G. Strade, a
lawyer in Hamburg.
On 9 August 1984 the applicant was convicted by the
Hamburg Regional Court (Landgericht) of murder and sentenced to life
imprisonment. According to the findings of the court the applicant
and an Italian accomplice had on 17 November 1982 shot and robbed a
business man to whom they used to sell stolen videos. Being on the run
the two were arrested on 16 December 1982 in Italy on the suspicion of
dealing with heroin. The revolver with which the murder was
committed was found in their possession. They were locked in a cell
together with an Italian undercover agent who pretended also to have
been arrested because he was in possession of heroin. Not knowing
that the undercover agent understood German the applicant spoke of the
murder to his accomplice.
On 23 December 1982 the applicant had confessed the crime
before the Italian police and two German police officers. He
eventually revoked the confession when he was heard another time by an
Italian investigating judge in April 1983.
At his trial before the Hamburg Regional Court the applicant
likewise denied having participated in the murder. He alleged that
his Italian friend had committed the murder alone. Subsequently, he
had obliged him to flee with him since otherwise he would be shot
likewise. After their arrest the Italian friend persuaded him to
confess to the crime. He accepted to do so as he suffered from cancer
and thought that he had not much time left to live. Also he was
rendered indifferent by the anti-pain drugs he had to take.
The trial Court considered that the applicant's allegations
made at the trial were inconsistent and contradictory and not
corroborated by other evidence. The Court pointed out inter alia that
in his confession the applicant gave a detailed description of the
crime. All details stated by him were corroborated by the
circumstances of the case. On the contrary the subsequent allegation
incriminating the Italian friend to be the sole author of the crime
was contradictory and untrustworthy. If he had made the confession
under the influence of drugs it would have been logical that he
revoked these declarations as soon as the effect of the drugs
decreased. However, he repeated his confession on three occasions,
once before a public prosecutor and once before the Italian
investigating judge. On the latter occasion he was confronted with
his accomplice and maintained that they had committed the crime
together.
Furthermore the Court took into consideration that according
to the statements of the two German police officers who attended the
interrogation on 23 December 1982 the applicant had not at all been
indifferent. Rather he first denied being involved in the matter and
resigned to a detailed confession only after several hours of
interrogation. He said he was relieved by his confession and both
witnesses were absolutely convinced by his statements.
The Court further took into account that the applicant and his
Italian accomplice were friends, had made shooting exercises together
and robbed a bank. In these circumstances it was likely that they
also planned the murder together. On the other hand it was unlikely
that a person fatally ill deliberately accepted to spend the rest of
his life in prison by confessing to a crime he had not committed.
Finally the Court stated that the applicant's allegations were
not confirmed by the witnesses he had named. The Italian undercover
agent did not confirm that the applicant's friend told him that he had
shot the business man. On the contrary he witnessed that the
applicant said to his friend: "we have shot someone and now we are
in the soup".
The applicant's appeal (Revision) was rejected by the Federal
Court (Bundesgerichtshof) on 9 August 1984 as being unfounded.
Without stating further reasons the Court referred to Section 349(2)
of the Code on Criminal Procedure (StPO).
The applicant's constitutional complaint was rejected on
17 September 1985 by a group of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) as offering no
prospects of success.
It is stated in the decision that the judgment complained of
did not reveal any arbitrariness constituting a violation of
constitutional law. In particular the assessment by the trial court
of the evidence was not arbitrary. It is true, so the Constitutional
Court pointed out, that Section 136 (a) of the Code on Criminal
Procedure (StPO) prohibits obtaining statements from an accused by way
of ill-treatment, fatigue, deception or other means affecting the
freedom of will. This provision, however, only applied to statements
brought about directly or indirectly by State organs, not however to
statements made by an accused at his own motion without having been
asked to do so.
The Italian undercover agent who heard the applicant talk to
his friend of the murder had by no means provoked the conversation in
question. Certain methods of mystification had to be allowed to the
prosecuting authorities in the interest of combating criminality
effectively. The case was not to be distinguished from a case where a
remand prisoner voluntarily informs another prisoner of having
committed an offence and is later denounced by this prisoner. In such
a case there would likewise be no reason not to admit the evidence in
question. Finally the Constitutional Court pointed out that the
Italian undercover agent had acted solely at the initiative of the
Italian authorities. In these circumstances it did not violate
constitutional law that the evidence given by him was also taken into
account by the German trial court. Even less so as it was the
applicant himself who had named the undercover agent as a witness
who could confirm the allegation that his friend admitted in the
Italian prison to having committed the murder.
&_COMPLAINTS&S
The applicant argues that his right to a fair trial as
guaranteed by Article 6 of the Convention was violated in that the
trial court considered evidence which was obtained in violation of
the principle that no accused is obliged to give evidence against
himself. He submits that he had been deceived by the Italian
undercover agent who pretended to have been arrested on account of
possession of heroin. As he did not know that this fellow prisoner
was in reality a police agent who understood German his freedom of
will was affected and thus he was led to make a statement which
was later held against him by the trial court.
&_THE LAW&S
The applicant has complained that his right to a fair trial as
guaranteed by Article 6 (Art. 6) of the Convention was violated because the
trial court, in convicting him, took into account evidence that was obtained
unlawfully, namely the statement of an Italian undercover police agent who had
pretended to be a remand prisoner and in front of whom the applicant spoke in
German to his friend not knowing that the police agent likewise understood
German.
It is true that the use of evidence obtained unlawfully by
coercive means may raise an issue as to the fairness of criminal
proceedings.
However, the Commission first notes that the applicant's
conviction is mainly based on his initial confession which was
considered to be confirmed by other circumstantial evidence, such as
the fact that he was the friend of his Italian accomplice, that they
had made shooting exercises and had robbed a bank shortly before the
murder. The evidence given by the Italian undercover agent was only
considered by the trial court in connection with the applicant's
allegation that his friend had stated in the presence of that agent
that he had committed the murder alone. In addition the Commission
notes that according to the Federal Constitutional Court the ruse
employed by the Italian police against the applicant does not in
itself constitute an unlawful method of obtaining evidence. The
applicant had an interest in not talking to his accomplice about
the crime in the presence of a third person. If he nevertheless freely
did so it is his own responsibility that this turned against him. He
has not alleged that the undercover agent in any way caused him to
talk about the killing of the business man. In these circumstances it
cannot be found that the applicant's freedom of will was affected by
the action of the Italian police so as to make the use of the evidence
obtained from the Italian undercover agent deprive the applicant of
his right to a fair trial as guaranteed by Article 6 (Art. 6) of the
Convention.
An examination by the Commission of this complaint does not
therefore disclose any appearance of a violation of the rights and
freedoms set out in the Convention and in particular in the above
Article.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 (2) (Art. 27-2) of the Convention.
For these reasons, the Commission
&_DECLARES THE APPLICATION INADMISSIBLE.&S
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)