In the Stocké case*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and
the relevant provisions of the Rules of Court***, as a Chamber
composed of the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr F. Gölcüklü,
Mr F. Matscher,
Sir Vincent Evans,
Mr C. Russo,
Mr R. Bernhardt,
Mr J. De Meyer,
Mr S.K. Martens,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 October 1990 and
18 February 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 28/1989/188/248. The first number is
the case's position on the list of cases referred to the Court in
the relevant year (second number). The last two numbers indicate
the case's position on the list of cases referred to the Court
since its creation and on the list of the corresponding
originating applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which
came into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force
on 1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 13 December
1989, within the three-month period laid down by Article 32 § 1
and Article 47 (art. 32-1, art. 47) of the Convention. It
originated in an application (no. 11755/85) against the Federal
Republic of Germany lodged with the Commission under Article 25
(art. 25) by a national of that State, Mr Walter Stocké.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Federal
Republic of Germany recognised the compulsory jurisdiction of the
Court (Article 46) (art. 46). The object of the request was to
obtain a decision as to whether the facts of the case disclosed a
breach by the respondent State of some of its obligations under
Article 5 § 1 and Article 6 § 1 (art. 5-1, art. 6-1) of the
Convention.
2. In response to the enquiry made in accordance with Rule 33
§ 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr R. Bernhardt, the elected judge of German nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 § 3 (b)). On 27 January 1990, in
the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr J. Cremona, Mr F.
Gölcüklü, Mr F. Matscher, Mr J. Pinheiro Farinha, Sir Vincent
Evans, Mr N. Valticos and Mr S.K. Martens (Article 43 in fine of
the Convention and Rule 21 § 4) (art. 43). Subsequently Mr C.
Russo and Mr J. De Meyer, substitute judges, replaced Mr Pinheiro
Farinha and Mr Valticos, who were unable to take part in the
further consideration of the case (Rule 22 § 1 and 24 § 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Deputy Registrar, consulted the
Agent of the German Government ("the Government"), the Delegate
of the Commission and the lawyer for the applicant on the need
for a written procedure (Rule 37 § 1).
In accordance with the order made in consequence, the
Registrar received the Government's and the applicant's memorials
on 15 June and the applicant's claims under Article 50 (art. 50)
of the Convention on 6 July.
In a letter of 2 August 1990 the Secretary to the Commission
informed the Registrar that the Delegate would be submitting his
observations at the hearing.
On 9 August the Commission supplied various documents that
the Registrar had requested on the President's instructions.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President had directed on 25 May
1990 that the oral proceedings should open on 23 October (Rule
38). On 9 July he gave the Government's representatives and the
applicant leave to address the Court in German (Rule 27 §§ 2 and
3).
6. In his memorial of 15 June and his observations of 4 July on
the application of Article 50 (art. 50) the applicant requested
that evidence should be heard from five witnesses. On 29 August
1990 the Court decided to ask the Agent of the Government and the
Delegate of the Commission to give their views in writing on the
applicant's request.
In his observations of 5 September the Delegate of the
Commission expressed the opinion that the Commission had gathered
all the evidence necessary to carry out its task. The Agent of
the Government, in his observations of 10 September, raised
objections to the measure requested by Mr Stocké.
On 27 September 1990, after deliberating in private, the
Court refused to make the requested further inquiries into the
facts, as matters stood.
7. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Meyer-Ladewig, Ministerialdirigent,
Federal Ministry of Justice, Agent,
Mr H. Gauf, Generalstaatsanwalt
at the Zweibrücken Court of Appeal,
Mr G. Uhink, Amtsrat,
Federal Ministry of Justice, Advisers;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicant
Mr T. Vogler, Professor of Criminal Law,
University of Giessen, Counsel.
The Court heard addresses by Mr Meyer-Ladewig for the
Government, Mr Weitzel for the Commission and Mr Vogler for the
applicant, as well as their replies to its questions. The
Government produced documents at the hearing.
AS TO THE FACTS
8. Mr Walter Stocké, a German citizen born in 1926, was the
owner of a building firm which went bankrupt in 1975.
9. From 26 March to 9 July 1976 he was held in custody under a
warrant (Haftbefehl) issued by the Ludwigshafen District Court
(Amtsgericht), as he was suspected of tax offences. In November
1977 the court ordered that he should be redetained as he had not
complied with the conditions of his provisional release. In
order to avoid arrest, Mr Stocké fled to Switzerland and then to
Strasbourg in France. In November 1977 an international request
for the location of his whereabouts was issued.
10. In 1978 Mr Köster, a police informer in
Rhineland-Palatinate, offered Mr Hoff, a police officer, his
assistance in finding Mr Stocké and asked to meet the public
prosecutor dealing with the case; he claimed to be able to
contact the applicant through one of the latter's former
colleagues, Mr Werner. Mr Hoff informed another police officer,
Mr Rittmeier, who was leading the investigation concerning Mr
Stocké, and his own superior, Mr Reuber, the head of the general
inquiries section of the Rhineland-Palatinate police.
A. The meeting at the Kaiserslautern public prosecutor's
office
11. The meeting, which lasted for about half an hour, took place
in the office of Mr Wilhelm, a public prosecutor who was head of
the business crime section of the Kaiserslautern public
prosecutor's office, in the spring of 1978. Earlier, Mr Wilhelm
had sought information from Mr Stepper, a prosecutor at the
Frankenthal public prosecutor's office, about Mr Köster, who was
himself the subject of criminal proceedings.
The meeting was attended by Mr Henrich, the prosecutor in
charge of the investigation concerning Mr Stocké; Mr Reuber and
Mr Rittmeier, representing the police; and Mr Köster. Mr Köster
repeated his earlier proposal (see paragraph 10 above). He
mentioned a building project in Spain which might interest the
applicant, and a plan to have Mr Stocké deported from Luxembourg.
According to Mr Wilhelm, Mr Köster wanted to know at the outset
whether his services would be rewarded. The prosecutor told him
that his department did not have funds to reward individuals for
their help in tracking down criminals but that his assistance
might be taken into account as an extenuating circumstance at his
own trial; Mr Wilhelm emphasised, however, that any action had to
be lawful and designed either to discover the applicant's
whereabouts abroad, for the purpose of extradition proceedings,
or to induce him to return to the Federal Republic of Germany of
his own accord (see paragraph 97 of the Commission's report).
B. The attempt to have the applicant deported from Luxembourg
12. At a meeting in a Frankfurt hotel Mr Köster introduced Mr
Hoff to Mr Werner as someone interested in investing in the
building project in Spain (see paragraph 11 above). It was
decided, however, that the three would meet again in Luxembourg,
as Mr Hoff wished to continue the discussions with Mr Stocké
himself present.
13. The criminal investigation department enquired of the
Luxembourg police whether the latter could arrest the applicant
on the ground that he had committed criminal offences in the
Grand Duchy and deport him to the Federal Republic of Germany.
At police headquarters in Luxembourg Mr Hoff, who had gone there
for the purpose, was informed that, as the law then stood, the
applicant could demand to be taken to the French border; without
an international arrest warrant, however, no action could be
taken against Mr Stocké at all.
Mr Hoff decided at that point not to go to the meeting that
had been arranged (see paragraph 12 above); he contacted the
applicant and pretended that he had had a road accident in the
Federal Republic of Germany. He suggested a meeting in Trier,
but the proposal was rejected.
14. Mr Reuber informed the Kaiserslautern public prosecutor's
office that the "Luxembourg plan" had failed.
C. The applicant's arrest at Saarbrücken Airport
15. On Mr Köster's initiative, the negotiations were to be
resumed in a Strasbourg hotel on 7 November 1978
(see paragraph 12 above).
16. In the meantime, the Kaiserslautern public prosecutor's
office had renewed the international request for the location of
Mr Stocké's whereabouts (see paragraph 9 above) for the purpose
of seeking his extradition from France.
17. On the morning of 7 November 1978 Mr Köster
telephoned Mr K. Ebeling, an officer in the Schifferstadt police,
to ask him to warn two other police officers, Mr Klemp and Mr
Höffel, of Mr Stocké's probable arrival at Saarbrücken Airport
towards the end of the afternoon. The head of the Ludwigshafen
police then ordered the three policemen to go to Saarbrücken and
seek the help of the local police.
The three policemen, assisted by members of the Saarbrücken
police task-force, waited for the applicant at the airport.
18. On the same day Mr Köster, accompanied by Mr Werner, met
Mr Stocké in Strasbourg as planned (see paragraph 15 above). He
told him that the other interested parties had not been able to
come but were waiting for them in Luxembourg and that he had
chartered a plane to take them there. Before take-off Mr Köster
secretly asked Mr Marzina, one of the two pilots, to touch down
at Saarbrücken. At 7.50 p.m. the plane landed at
Saarbrücken-Ensheim Airport. The pilots had previously reported
icing of the engine and alerted air-traffic control at the
airport, but they did not seek any technical assistance after
they had landed.
19. The applicant was immediately arrested and taken into
custody; the warrant for his arrest issued in 1976 was still
valid (see paragraph 9 above).
On the next day, 8 November 1978, Mr Reuber informed Mr
Wilhelm, the prosecutor, of these events. Mr Köster received DEM
500 from the Ludwigshafen police and on 16 March 1979 a further
DEM 2,500 by way of reimbursement of his expenses, in particular
the cost of chartering the plane.
D. The applicant's complaints of false imprisonment
20. On 15 May 1979 Mr Stocké lodged a criminal complaint against
Mr Köster and a person or persons unknown alleging false
imprisonment.
21. The public prosecutor's office at Zweibrücken opened an
investigation concerning "Köster and Others" and instituted
disciplinary proceedings against Mr Schnarr, the director of the
Kaiserslautern public prosecutor's office, the prosecutors
Wilhelm and Henrich and the policemen involved in the applicant's
arrest. In official statements made in September 1979 the three
prosecutors each said that they had only learned of the arrest on
8 November 1978. In a memorandum of June 1979 Mr Adam, the head
of the special task force at Saarbrücken police station, had
revealed that Mr Henrich had given instructions concerning the
police measures to be taken in Saarland.
On 24 September 1979, however, the public prosecutor's
office, taking the view that Mr Stocké had been arrested under a
warrant issued in accordance with Article 112 of the Code of
Criminal Procedure, decided to end the investigation. It
considered that the facts complained of by the applicant did not
amount to false imprisonment within the meaning of Article 239 of
the German Criminal Code. The disciplinary proceedings against
the three prosecutors were discontinued at the same time.
22. On 7 October 1979 the applicant again lodged a complaint
against a person or persons unknown, alleging kidnapping; he
accused the public prosecutor's office and Mr Köster of
collusion.
In October and November 1979 Mr Schnarr, Mr Wilhelm and
Mr Henrich repeated their previous statements (see paragraph 21
above). Mr Lesmeister, Mr Antes and Mr Biesel, police officers
who had taken part in the arrest, said that the Ludwigshafen
police had asked for their assistance during the morning of 7
November (see paragraph 17 above) and that Mr Klemp had said he
was acting with the consent of the appropriate public
prosecutor's office.
23. On 5 February 1980 the Zweibrücken Court of Appeal
(Oberlandesgericht), to which Mr Stocké had appealed against the
decision of 24 September 1979 (see paragraph 21 above), ordered
that the investigation should be resumed. In August 1980 Mr
Klemp, Mr Höffel and Mr K. Ebeling refused to give evidence on
the grounds that they were likely to incriminate themselves
(Article 55 of the Code of Criminal Procedure); Mr Höffel also
relied on his duty of discretion, as the questions put related to
specific aspects of police strategy.
24. On 15 November 1980 the applicant lodged a complaint against
Mr Reuber, Mr Klemp, Mr Höffel and Mr K. Ebeling alleging false
imprisonment. In February and March 1981 they refused to give
evidence.
25. On 23 September 1981 the director of the Zweibrücken public
prosecutor's office rejected a fresh complaint by the applicant
against certain prosecutors and policemen involved in his return
from France.
26. On 10 November 1982 the public prosecutor's office charged
the two pilots, Mr Marzina and Mr M. Ebeling, and Mr Klemp, Mr
Höffel and Mr K. Ebeling with aiding and abetting false
imprisonment.
On 26 July 1983, however, the Frankenthal Regional Court
(Landgericht) decided not to proceed to trial, on the ground that
there were insufficient reasons for suspecting the accused. The
public prosecutor's office and Mr Stocké lodged appeals, which
the Zweibrücken Court of Appeal dismissed on 6 April 1984.
27. The court held that the two pilots had to be exonerated, as
their assertions that they had known nothing of Mr Köster's plan
could not be refuted. In particular, Mr Marzina had been charged
on the basis of statements made by Mr Kummer (himself a police
informer), who claimed that he had been present when Mr Köster
asked the two pilots to simulate a forced landing at Saarbrücken.
Those statements lacked credibility, however, both for objective
reasons - apparent contradictions and errors - and for subjective
reasons - resentment of Mr Köster and the police officers who
were sparing no effort to help him out. Furthermore, Mr
Marzina's evidence that the landing was necessary because of a
technical fault could not be challenged; Mr Werner had himself
heard the engine spluttering. Be that as it might, the pilot
would have agreed to land at Saarbrücken in any case, as Mr
Köster, who was one of his regular customers, had asked him to do
so; nor could Mr Marzina have suspected Mr Köster's ulterior
motives. Lastly, the applicant had made no objection when the
pilot told him they were going to fly over a small part of German
territory.
As for the three policemen, the Court of Appeal noted that
their mere knowledge of the applicant's arrival and the action
they had taken to arrest him did not constitute any offence;
their complicity with Mr Köster would have been made out only if
they had known of and concurred in the applicant's being flown to
Saarbrücken against his will. The court again drew attention to
the fact that Mr Kummer's accusations against the policemen were
vague and contradictory; and it gave no credence to the
statements of other witnesses, on the ground that they were based
on what the witnesses had subsequently heard from Mr Köster, who
boasted excessively of his collaboration with the police.
Lastly, the fact that Mr Köster, Mr Werner, Mr Klemp, Mr Höffel
and Mr Marzina had celebrated Mr Stocké's arrest with champagne
was not sufficient to establish that the police officers had been
told of it in advance.
28. In the meantime the proceedings against Mr Köster had been
suspended, as he had absconded. He was arrested in Austria in
April 1982 and extradited to the Federal Republic of Germany on
other charges and not on that of false imprisonment, as the
Austrian authorities considered that Mr Stocké had been arrested
under a valid warrant and that his detention was accordingly not
unlawful in Austrian law.
29. In two letters sent to Mr Klemp (the police officer) and
Mr Wilhelm (the prosecutor) in April and November 1982
respectively Mr Köster sought their help, mentioning the services
he had rendered as a police informer, especially in the
applicant's case. He stated that the operation involving Mr
Stocké had been mounted by the Kaiserslautern public prosecutor's
office and the Rhineland-Palatinate police, the latter having
even indicated the appropriate time to act. In his first letter
he denied having asked the pilots to touch down at Saarbrücken
and having informed the authorities, but he retracted that denial
in the second letter.
30. Mr Köster was released in July 1983 on condition that he did
not leave the country, but he fled abroad. He returned to
Germany in October 1987, unbeknown to the police, and was
arrested in February 1988 for uttering counterfeit currency. On
14 November 1988 the Frankenthal Regional Court sentenced him to
four years and six months' imprisonment for forgery, and on 16
March 1989 to eight years for fraud; the two sentences were
aggregated and a total sentence (Gesamtstrafe) of nine years was
imposed.
E. Proceedings against the applicant
1. The proceedings in the Kaiserslautern Regional Court
31. The trial began in the Kaiserslautern Regional Court on
25 October 1979.
32. On 17 March 1981 the court ordered that Mr Stocké's
detention should be continued. He appealed against this order to
the Zweibrücken Court of Appeal, which dismissed his appeal on
16 April 1981. He then applied to the Federal Constitutional
Court (Bundesverfassungsgericht), but on 26 August 1981 a panel
of three of that court's judges decided not to entertain the
appeal, because the applicant had insufficient prospects of
success.
33. On 4 February 1982 the Regional Court found Mr Stocké guilty
of fraud in two cases (and of incitement to commit fraudulent
conversion in one of them) and of tax evasion and failure to keep
proper accounts in three others; the applicant was sentenced to
six years' imprisonment.
In its judgment, which ran to 399 pages, the court said that
it had not been established that the Kaiserslautern public
prosecutor's office had supported the alleged kidnapping of Mr
Stocké or had known of it in advance; the official statements on
the matter by the prosecutors concerned were categorical and
could not be called in question. It was therefore unnecessary to
seek other relevant evidence as neither the kidnapping nor the
alleged resulting breach of the Franco-German extradition treaty
could be a bar to the proceedings against the applicant. Mr
Stocké's arrest on German territory under a valid, lawful warrant
was not unlawful and was not contrary to international law even
if the police authorities had got wind of this "private
kidnapping" (private Entführung). Even on the assumption that Mr
Köster had acted at the instance of the police and with their
help, Mr Stocké was subject to the jurisdiction of the German
courts. Nor could he rely on a breach of the Franco-German
extradition treaty, which created rights and obligations only
between the Contracting States; a violation of it could only
affect those two States' mutual relations and could not avail the
individual concerned.
The court added that Article 25 of the Basic Law (primacy of
the general rules of international law over federal laws) was
likewise no bar to the current proceedings. It was for the
aggrieved State to assert its right to ask for the return of the
person kidnapped. The French Government, however, had not done
so; on the contrary, by a letter of 30 October 1980 the
Strasbourg public prosecutor's office had informed the Principal
Public Prosecutor at Kaiserslautern that it had dropped the
proceedings initiated on the applicant's complaint alleging false
imprisonment, as no offence had been committed on French
territory. Its investigations had shown that the applicant had
boarded the aircraft of his own free will.
2. The proceedings in the Federal Court of Justice
(Bundesgerichtshof)
34. Mr Stocké lodged an appeal on points of law (Revision) with
the Federal Court of Justice.
35. When interviewed by the Mannheim police on 25 July 1984 at
the Federal Court's request, Mr Kummer (see paragraph 27 above)
described his conversations with Mr Köster, during which the
latter had told him of his meetings with the policemen in order
to devise a plan to bring the applicant back to the Federal
Republic of Germany by a trick; in particular, Mr Stepper (a
public prosecutor) had approved the plan and Mr Köster had
celebrated its successful implementation with the policemen
concerned in a Mannheim hotel.
36. On 2 August 1984 the Federal Court dismissed the appeal and
upheld the judgment of the Kaiserslautern Regional Court, whose
reasoning it for the most part endorsed. It emphasised that the
defendant, a German citizen, came under the jurisdiction of the
German courts and did not belong to a category of persons who
could assert any ground of personal immunity.
3. The proceedings in the Federal Constitutional Court
37. On 17 July 1985 the Federal Constitutional Court, sitting as
a panel of three judges, declined to entertain Mr Stocké's appeal
against the judgments of 4 February 1982 and 2 August 1984 (see
paragraphs 33 and 36 above), on the ground that it had no
prospects of succeeding.
The court held that there was no rule of international law
to prevent a State's courts from prosecuting a person brought
before them in breach of the territorial sovereignty of another
State or of an extradition treaty. It was apparent from
American, Israeli, French and British case-law that in such an
event a court did not decline jurisdiction unless the other State
had protested and sought the return of the person concerned. The
fact that there were a few decisions in which courts had ordered
that the proceedings should be stayed was not sufficient to
establish a real practice to that effect.
The court added, among other things, that when he was living
in France the applicant was not safe from prosecution in the
Federal Republic of Germany; the fact that he was charged mainly
with tax offences did not preclude his extradition.
38. Mr Stocké served the remaining part of two-thirds of his
sentence between 10 June and 6 December 1985 and was
conditionally released in respect of the rest.
F. The prosecution of Mr Köster for false imprisonment
39. On 9 December 1986 the Principal Public Prosecutor at
Zweibrücken asked Mr Stepper to submit his observations on his
part in the proceedings which had led to Mr Stocké's arrest and
on Mr Kummer's evidence (see paragraph 35 above).
40. In an official statement on 7 August 1987 Mr Wilhelm,
answering allegations in Mr Köster's second letter (see
paragraph 29 above), described the discussions which had taken
place in his office in 1978 (see paragraph 11 above); he claimed
to have told Mr Köster that the public prosecutor's office could
not give him any instructions as to the plan to have the
applicant deported from Luxembourg and he said that it had been
left entirely to Mr Köster to decide whether he wanted to induce
Mr Stocké to return to the Federal Republic of Germany.
41. On 23 March 1988 the Frankenthal public prosecutor's office
charged Mr Köster with false imprisonment and informed Mr Stocké
of this. On 2 April 1989 the Frankenthal Regional Court
dismissed the prosecution's application to commit the applicant
for trial on that charge; it referred to the Zweibrücken Court of
Appeal's judgment of 6 April 1984 (see paragraph 27 above) and
ruled that the evidence from the investigation could not support
a finding that Mr Köster was guilty.
42. On an appeal by the prosecution and the applicant, who had
joined the criminal proceedings as a civil party seeking damages,
the Zweibrücken Court of Appeal set aside that decision on
15 November 1989 and committed Mr Köster for trial by the Third
Criminal Division of the Frankenthal Regional Court, in
accordance with the indictment. It held that there was
sufficient circumstantial evidence to warrant concluding that Mr
Köster had committed the offence with which he was charged. The
court added that a provisional assessment of the evidence that
had been gathered suggested that a conviction would be secured;
many of the twenty or so witnesses had testified that Mr Köster
had contrived the landing at Saarbrücken. As for the policemen
involved, it noted that their refusal to give evidence was no
longer justified as any proceedings for aiding and abetting false
imprisonment were now time-barred (Article 78 of the Criminal
Code).
43. In a letter of 18 July 1990 the Frankenthal public
prosecutor's office applied to the presiding judge of the Third
Criminal Division for a ruling that the proceedings were
time-barred; but for that, it added, Mr Köster would undoubtedly
have been convicted. The Frankenthal Regional Court granted the
application in a decision of 28 August 1990, which, on an appeal
by the applicant, was upheld by the Zweibrücken Court of Appeal
on 26 October 1990.
PROCEEDINGS BEFORE THE COMMISSION
44. In his application of 20 September 1985 to the Commission
(no. 11755/85), Mr Stocké relied on Article 5 § 1 (art. 5-1) of
the Convention, alleging that the circumstances of his arrest
made it and his detention both on remand and after conviction
unlawful. He also asserted that those circumstances had deprived
him of a fair trial as guaranteed by Article 6 § 1 (art. 6-1).
45. After examining a mass of evidence relating to the events
complained of, which had been obtained both during the national
proceedings and during those before the Commission, the
Commission declared the application admissible on 9 July 1989.
In its report of 12 October 1989 (made under Article 31) (art.
31) it expressed the opinion by twelve votes to one that there
had been no breach of Articles 5 § 1 and 6 § 1 (art. 5-1, art. 6-
1). The full text of the Commission's opinion is reproduced as
an annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will
appear only with the printed version of the judgment (volume 199
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
46. At the hearing on 23 October 1990 the Government asked the
Court to hold that the Federal Republic of Germany had not
violated the Convention in the instant case.
AS TO THE LAW
47. Mr Stocké claimed to be the victim of collusion between the
German authorities and Mr Köster for the purpose of bringing him
back to the Federal Republic of Germany against his will with a
view to arresting him. The collusion allegedly resulted in
violations of Articles 5 § 1 and 6 § 1 (art. 5-1, art. 6-1),
which provide:
Article 5 (art. 5)
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after conviction by a
competent court;
...
(c) the lawful arrest or detention of a person effected for
the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having
done so;
... ."
Article 6 (art. 6)
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ... ."
According to the applicant, the prosecuting authorities
considered that it was too uncertain whether an extradition
request to France would succeed and had preferred to make use of
a police informer to do "the dirty work abroad".
While conceding that the extent of the prosecuting
authorities' involvement in the preparations for Mr Köster's
enterprise was not wholly clear, the applicant alleged that the
authorities were acquainted in minute detail with the plan to
kidnap him in Strasbourg; the failed attempt to have him expelled
from Luxembourg on trumped-up charges (see paragraph 13 above)
showed, moreover, that the prosecution authorities and Mr Köster
had cooperated for unlawful purposes. After the telephone call
on 7 November 1978 (see paragraph 17 above) the prosecuting
authorities knew that Mr Köster was again trying to keep his
promises in the hope that the sentence he himself faced would be
reduced (see paragraph 11 above). Notwithstanding the failure of
the Luxembourg plan and doubts about the lawfulness of Mr
Köster's methods, the prosecuting authorities had instructed the
police (see paragraph 17 above) to arrest the applicant and they
thus endorsed the kidnapping. The reimbursement of Mr Köster's
expenses (see paragraph 19 above) was evidence of this,
especially as the cost of chartering the plane had been
calculated in advance in order to ascertain whether it was within
the limits of what could be reimbursed.
Mr Stocké also complained of the way in which the
proceedings against Mr Köster were conducted (see paragraphs
20-30 above). As the authorities were anxious to ensure that
their "hatchet man" did not have to give explanations, for fear
that he might implicate those for whom he had been acting, they
had raised innumerable obstacles. They had attempted to deprive
the applicant of any influence on the proceedings by letting the
processing of his application to join the proceedings as a civil
party seeking damages drag on for months and endeavoured to
restrict his right to inspect the file by unlawfully retaining in
their possession a number of documents. Furthermore, the
Minister of Justice of Rhineland-Palatinate had decided not to
discontinue the proceedings only after a strong protest from
Mr Stocké. Lastly, by their procrastination the German
authorities had allowed the proceedings to become time-barred
(see paragraphs 41-43 above), thus rewarding the kidnapper for
his assistance.
48. The Government denied these allegations. Not only had the
authorities not been warned of Mr Köster's intentions but they
had done their best to clarify the situation.
To begin with, no plan to kidnap Mr Stocké had been drawn up
at the meeting in the office of Mr Wilhelm, a public prosecutor,
in the autumn of 1978 (see paragraph 11 above). The authorities
wanted to obtain information that would help them to trace Mr
Stocké, who had absconded. Although they had agreed to the
proposal to have him expelled from Luxembourg, they had had to
abandon this idea when they became aware of the legal obstacles
(see paragraph 13 above). Furthermore, the prosecuting
authorities had not learned of the arrest complained of until the
following day (see paragraph 19 above). Lastly, Mr Köster had
been reimbursed for his expenses but had not received any
remuneration.
Admittedly, a number of factors might suggest that the
prosecuting authorities and certain police officers had acted in
collusion with Mr Köster, but the prosecution had made meticulous
inquiries; they had brought charges against three policemen and
both pilots and had appealed against the Frankenthal Regional
Court's decision of 26 July 1983 not to commit them for trial
(see paragraph 26 above). The Zweibrücken Court of Appeal had
thoroughly examined the evidence before it, including the
statements of the principal witnesses, and had concluded that
there were not sufficient grounds for suspecting the accused
pilots and policemen of having committed the offence in question
(see paragraph 27 above).
As to Mr Köster, the German judicial authorities had
"neither shielded him nor dealt leniently with him". He was
arrested in February 1988 (see paragraph 30 above) and charged
with false imprisonment a month later (see paragraph 41 above).
The prosecution had immediately appealed against the Frankenthal
Regional Court's decision not to proceed to trial (see paragraphs
41-42 above); they had not discontinued the proceedings, although
an additional penalty for false imprisonment would not have made
much difference to the sentence to be served by Mr Köster, who
had already been sentenced to nine years' imprisonment for other
offences.
49. The Court notes at the outset that the applicant was induced
by a trick to board a plane chartered by Mr Köster (see paragraph
18 above), although he had been warned that they were going to
fly over a small part of German territory (see paragraph 27
above). After being arrested by the German police immediately
after the plane landed at Saarbrücken (see paragraphs 18-19
above), he lodged a complaint in France (see paragraph 33 above)
and in the Federal Republic of Germany, alleging false
imprisonment.
50. In a letter of 30 October 1980 the public prosecutor's
office in Strasbourg informed the office in Kaiserslautern that
it had discontinued the proceedings initiated on the complaint,
as no offence had been committed on French soil; the inquiries
that had been made had shown that the applicant had boarded the
plane of his own free will and not under duress (see paragraph 33
above).
On 6 April 1984 the Zweibrücken Court of Appeal upheld the
Frankenthal Regional Court's decision not to commit the two
pilots and the three policemen for trial on a charge of aiding
and abetting false imprisonment. In particular, it held that
their claim not to know anything about Mr Köster's plan had not
been disproved (see paragraph 27 above).
51. The Commission examined nine witnesses, three of whom, under
the domestic legal system, had relied on the protection of
Article 55 of the German Code of Criminal Procedure (see
paragraph 23 above). Three members of the Commission, delegated
for the purpose, heard evidence on 4 July 1988 from two
prosecutors and a policeman concerning the nature and extent of
the contacts between the prosecuting authorities and Mr Köster,
and on 15 September 1988 from four other policemen and two of the
three persons who had already appeared in July 1988. Lastly, on
16 October 1988 two other policemen answered questions about
specific aspects of the applicant's assertions. They all denied
having known about Mr Köster's plan to bring Mr Stocké back to
the Federal Republic of Germany against his will or having agreed
to such a plan being carried out; the Commission did not consider
their evidence to be inconsistent or unreliable.
Neither the facts found by the Commission nor the
circumstances of the case as a whole established that the
cooperation that there had unquestionably been between the German
prosecuting authorities and Mr Köster had extended to "unlawful
activities abroad such as [returning] the applicant against his
will from France to the Federal Republic of Germany".
52. On 15 June 1990 Mr Stocké made an application to the Court
(see paragraph 6 above), which he reiterated at the public
hearing, for five witnesses to be called, four of whom had not
been heard by the Commission. In his observations as to whether
such evidence should be heard, the Delegate of the Commission
expressed the view that the Commission had taken all the evidence
necessary to carry out its task. The Agent of the Government
objected to the granting of the application.
53. The Court recalls that under the Convention system, the
establishment and verification of the facts is primarily a matter
for the Commission (Articles 28 § 1 and 31). Accordingly, it is
only in exceptional circumstances that the Court will use its
powers in this area.
In the light of this, having regard to the conclusions
reached by the French and German authorities, after thorough
investigations, to the evidence of the numerous witnesses already
heard by the Commission as set out in its report in a summary
whose accuracy has not been challenged, and to the fact that the
Commission deemed it unnecessary to hear further evidence, the
Court sees no reason to entertain the applicant's request.
54. Like the Commission, the Court considers that it has not
been established that the cooperation between the German
authorities and Mr Köster extended to unlawful activities abroad.
Accordingly, it does not deem it necessary to examine, as
the Commission did, whether, if it had been otherwise, the
applicant's arrest in the Federal Republic of Germany would have
violated the Convention.
55. In conclusion, the Court finds that there has been no
violation of Article 5 or Article 6 (art. 5, art. 6).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no breach of Articles 5 and 6
(art. 5, art. 6).
Done in French and in English, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 19 March
1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André Eissen
Registrar
In accordance with Article 51 § 2 (art. 51-2) of the Convention
and Rule 53 § 2 of the Rules of Court, the concurring opinion of
Mr Matscher is annexed to this judgment.
Initialled: R.R.
Initialled: M.-A.E.
CONCURRING OPINION OF JUDGE MATSCHER
(Translation)
I voted in favour of finding that there had been no
violation, on the ground that, notwithstanding doubts about the
unfolding of certain events, no violation had been made out.
I also agreed with the Court's decision not to hear further
witnesses (or to hear again the witness already heard by the
Commission), because in view of the circumstances of the case
and, in particular, the time which had elapsed since the events
complained of (twelve years!), further inquiries into the facts
would not, in my view, have helped to throw any light on the
matters remaining in doubt.
Full & Egal Universal Law Academy