AS TO THE ADMISSIBILITY OF
Application No. 12811/87
by Manfred RADERMACHER and Klaus PFERRER
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 8 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
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 17 March 1987
by Manfred Radermacher and Klaus Pferrer against the Federal Republic
of Germany and registered on 19 March 1987 under file No. 12811/87;
Having regard to:
- the report provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
27 January 1988 and the observations in reply submitted by the
applicant on 15 March 1988;
- the submissions made by the parties at the hearing on
8 December 1988;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
The first applicant, born in 1943, is a businessman resident
in Herzogenrath. The second applicant, born in 1944, is a housekeeper
resident in Aachen. Both applicants are German nationals. Before the
Commission they are represented by Mr. T. Vogler, Professor of Law
at Giessen University.
Both applicants were convicted by the Munich I Regional Court
(Landgericht München I) on 13 December 1985, the first applicant of
counterfeiting of money (Geldfälschung; § 146 Abs. 1 Nr. 2
Strafgesetzbuch) and the second applicant of having acted as an
accessory (Beihilfe). The first applicant was sentenced to two years
and nine months' imprisonment. The second applicant was sentenced
to one year's imprisonment, but the execution of his sentence was
suspended on probation.
As to the facts the Regional Court found in particular that in
1981 the second applicant had met W who was living in Leipheim and had
acted in the matter as an undercover agent ("V-Mann") for the Bavarian
Office of Criminal Investigation (Bayerisches Landeskriminalamt). For
years W had offered him dubious deals, but the second applicant had
always rejected these propositions and not yielded to W's urgent
requests. In the context of a proposed sale of a painting the second
applicant had gone to see W in Leipheim. On this occasion W had told
him among other things that somebody wanted to buy counterfeit money
up to a sum of 10 million US $. A wealthy banker intended to deposit
the counterfeit money in the vault of his bank and to grant through a
dummy a high credit on the basis of this "security". This credit
should be used for profitable transactions. The credit would be paid
back out of these profits and the counterfeits then destroyed. In the
course of time the second applicant had told the first applicant about
this offer, particularly after the matter had been raised several
times by W when talking with the second applicant on the phone.
According to the respondent Government, the Bavarian Office of
Criminal Investigation received information about a group of persons
offering counterfeit money in the Aachen area in 1982 and 1983.
According to the Government's submissions, W met the second applicant
for the first time in January 1983.
In its findings as to the facts, the Munich I Regional Court
further stated that, when in 1984 the first applicant faced financial
difficulties and learned about an opportunity to obtain counterfeit
US $ from Belgium, the second applicant had arranged a meeting with W
in Leipheim. W had repeated the offer he had earlier made to the
second applicant and this time offered the first applicant the
opportunity to make the deal.
In agreement with W the first applicant had then negotiated
with some Belgians about the delivery of counterfeit money. At
another meeting in Stuttgart with W and a certain "Hans", who was
either another undercover agent of the Bavarian Office of Criminal
Investigation or an official of this Office, it had been agreed that
the counterfeits to be delivered should consist of 50- or 100-US $
notes. "Hans" had later decided that the counterfeit banknotes should
be numbered consecutively and that fluorescent paper should be used.
"Hans" had also examined one proof passed on to him by the first
applicant and expressed his satisfaction about its quality. He had
furthermore been informed by the first applicant of the payment asked
by the Belgians for the first partial delivery of 500.000 US $ and
agreed to it.
Having received the counterfeit money from the Belgians in
Germany on 24 February 1985, the first applicant had been ordered by
"Hans" to come to Munich on 26 February 1985, where he was arrested
after negotiations with "Hans". The second applicant gave himself up
to the police in Munich on 31 July 1987.
The Regional Court considered that the activities of W and
"Hans" constituted a non-negligible element in regard to the offences
committed by the applicants but that they did not exceed the limits
permitted for activities of undercover agents. The Court further
stated:
"In the present case, the only objection against the
activity of the undercover agents could flow from the fact
that W <...> went on a 'fishing expedition' for potential
dealers of counterfeit money in (the second applicant's)
demi-monde milieu without a concrete initial suspicion
against (the second applicant). However, it is indispensable
to proceed in such a way in regard to dangerous delinquency
which is difficult to clear up as it is the case with
delinquency involving counterfeit money ... Otherwise it
would not be possible to trace counterfeit money
transactions of the present kind. Up to the moment when W
and 'Hans' entered into action in a concrete way, pretending
to be interested in buying counterfeit money, (the first
applicant) had already developed numerous activities of his
own for a long time - (the second applicant) had established
the connection - and thereby created a concrete suspicion.
It is therefore out of the question that (the applicants)
were instigated by undercover agents of the Bavarian Office
of Criminal Investigation."
"Das einzige Bedenken gegen die Lockspitzeltätigkeit
könnte im vorliegenden Fall daraus fließen, daß W ... ohne
konkreten Anfangsverdacht gegenüber Pferrer in dessen Halb-
weltmilieu die Angel nach potentiellen Falschgeldhändlern
auswarf. Indes kann auf ein solches Vorgehen bei gefähr-
licher und schwer aufklärbarer Kriminalität, wie es u.a. die
Falschgeldkriminalität ist, nicht verzichtet werden (...).
Andernfalls wäre es nicht möglich, Falschgeldgeschäften der
vorliegenden Art auf die Spur zu kommen. Bis zu dem Zeit-
punkt, als W und 'Hans' konkret als vorgebliche Falschgeld-
abnehmer in Aktion traten, hatte der Angeklagte R (der erste
Beschwerdeführer) schon über einen langen Zeitraum zahlreiche
Eigenaktivitäten entwickelt - P (der zweite Beschwerdeführer)
die Verbindung hergestellt - und damit einen konkreten Verdacht
gesetzt. Von einer Anstiftung der Angeklagten durch V-Leute
des Bayerischen Landeskriminalamts kann daher hier keine Rede sein."
In fixing the sentences the Court considered as mitigating
circumstances that the offences committed by the applicants had been
strongly supported by the "agents provocateurs".
This judgment was upheld by the Federal Court of Justice
(Bundesgerichtshof) on 1 July 1986. This Court found that the police
had had a legitimate interest in finding out how the first applicant was
able to obtain such a quantity of counterfeit money and - when it became
apparent that the counterfeit money was still to be produced - who the
manufacturers were. The Regional Court did sufficiently take into
account the activity of the prosecution authorities when determining
the sentence.
On 16 September 1986 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to accept the applicants' constitutional
complaint (Verfassungsbeschwerde) as not offering sufficient prospects
of success. It stated that the use of undercover agents was necessary
for combating the most dangerous crimes. In the present case the
first applicant was not directly induced to commit the crime by
the influence of undercover agents but by a hint of a former friend.
He developed essential initiatives of his own and it was he and not
the agents who made the second applicant establish the connection with
the persons purporting to be interested in buying the counterfeit money.
On 8 January 1987, the Duisburg Regional Court decided to
suspend on probation the execution of the remaining part of the first
applicant's sentence. The Public Prosecutor's appeal against this
decision was rejected by the Düsseldorf Court of Appeal (Oberlandes-
gericht) on 3 February 1987.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the
Convention that they were induced by undercover agents to commit the
offences of which they were eventually convicted. The counterfeiting
was initiated and controlled by the Bavarian Office of Criminal
Investigation. There was no offence which could have been cleared up
by using undercover agents. None of the applicants were suspected of
having anything to do with production or distribution of false
money. Therefore there were no "suspects" nor was there any offence.
It was the use of the undercover agents which led to the production of
counterfeit money and made the applicants become "suspects". Crimes were
not cleared up, but produced. In this respect the present case has to
be distinguished from Application No. 10747/84 where a suspicion
already existed at the time when the contact was established by the
undercover agent. In the present case, however, there was not the
slightest reason for entertaining a suspicion against the applicants.
Under such circumstances the use of undercover agents was not
justified and it was contrary to the principle of fair trial as
guaranteed by Article 6 para. 1 of the Convention.
The applicants also complain that contrary to Article 6 para.
3 (d) of the Convention the Munich I Regional Court refused to summon the
responsible public prosecutor whose examination had been requested by
the defence in order to clarify the full extent to which official
agencies were involved in this matter. Additionally, the prosecution
had manipulated the availability of evidence to the applicants'
detriment by initiating criminal proceedings against W. Thus, the
prosecution saw to it that W became privileged and entitled to refuse
to give evidence.
The second applicant finally claims to be a victim of
discrimination contrary to Article 14 of the Convention. Although he
did not have a criminal record it was apparently justified to trouble
him by having State organs induce him to commit criminal offences on
account of his working and living in the "demi-monde milieu". The
Convention guarantees the right to liberty and security of person
(Article 5) and to a fair trial (Article 6 para. 1) for everyone. The
right to liberty and security also includes the right to be safe from
being induced by State organs to commit criminal offences. It is an
intolerable discrimination to abuse him as a means for clearing up
criminality and make him serve public purposes because of his working
and living amongst the so-called "demi-monde".
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 March 1987 and registered
on 19 March 1987.
On 9 November 1987 the Commission decided that, in accordance
with Rule 42 para. 2 (b) of the Rules of Procedure, notice should be
given to the respondent Government of the application and that the
Government should be invited to submit written observations on the
admissibility and merits of the case. The Government's observations
dated 27 January 1988 were received on 1 February 1988. After
extension of the time-limit, the applicant submitted his reply on
25 March 1988.
On 8 July 1988 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application.
At the hearing which was held on 8 December 1988 the parties
were represented as follows:
The Government
Mr. J. Meyer-Ladewig Ministerialdirigent,
Federal Ministry of Justice,
Agent
Mr. E. Liedgens Erster Kriminalhauptkommissar,
Bavarian Office of Criminal Investigation,
Adviser
The Applicants
Mr. T. Vogler Professor, Counsel
Mr. W. Krüger Rechtsanwalt, Counsel
The applicants attended the hearing in person.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
1. The Government consider that the application is not
inadmissible under Articles 26 and 27 para. 3 of the Convention.
2. The Government maintain that the use of "agents provocateurs"
does not, as such, violate the rights and freedoms under the
Convention. They refer, in this respect, to the Commission's
decisions on the admissibility of Applications No. 9165/80 (Dec.
6.7.81) and No. 10747/84 (Dec. 7.10.85) concerning the punishment of
offences committed at an occasion specially prepared as a trap to
catch the person in question, and the use of an "agent provocateur",
respectively. They consider that the use of "agents provocateurs"
might only in exceptional circumstances violate the Convention.
3. The Government submit that the right to a fair hearing under
Article 6 para. 1 of the Convention calls for interpretation by the
domestic legislator and the High Contracting Parties. The lack of
precision of this right excludes that specific guarantees are derived
therefrom, unless indispensable requirements of a fair hearing under the
rule of law are no longer met.
A right not to be convicted on account of special
circumstances, such as prosecution being statute-barred or, as in the
present case, the use of "agents provocateurs", is not indispensable
for a fair hearing. A balance has to be struck between the public
interest in prosecution and the legitimate interests of the individual
concerned, and a wide margin of appreciation has to be left to the
national legislator and the national courts.
German law provides for a fair balance in such cases: in
the present case, the use of "agents provocateur" was considered as a
mitigating fact and the execution of the remaining half of the first
applicant's sentence was suspended on probation.
In the present case, there are, therefore, no exceptional
circumstances necessitating a review by the Commission. The
applicants decided freely and on their own initiative to enter into
the deal with the counterfeit money. The first applicant made
up his mind to commit the offence when he heard about the opportunity
to receive counterfeit money, and remembered a person interested in
such a deal who had talked to the second applicant years ago. The
fact that this person was an "agent provocateur" did not decisively
influence the first applicant's decision to organise a deal with
counterfeit money. The first applicant himself developed considerable
criminal energy to get into contact with the "agent provocateur".
Furthermore the Convention, especially Article 6 para. 1, does
not require that an "agent provocateur" cannot be used unless there is
a reasonable suspicion that the person concerned has committed an
offence or intends to commit an offence. The Convention does not
contain any provision concerning the use of "agents provocateurs"
which corresponds to Article 5 para. 1 (c) of the Convention as
regards arrest and detention on remand. Rather Article 6 para. 1
second sentence and para. 3 (c) of the Convention expressly refer to
public interests.
For the interpretation of the right to a fair hearing under
Article 6 para. 1 of the Convention, account is, therefore, to be
taken of the public interest to efficiently prosecute offences in
connection with counterfeit money.
4. The Government submit that Article 6 para. 3 (d) of the
Convention does not confer upon a person charged with a criminal
offence an unlimited right to obtain the examination of witnesses.
A court can dismiss a request to take evidence if, in the court's
opinion, the result is not relevant for ascertaining the truth. The
applicant's allegation that the official agancies had been involved in
a plan to instigate the applicants to produce counterfeit money was
completely unfounded. The Munich I Regional Court had, therefore, not
been required to summon the responsible public prosecutor as requested
by the applicants.
Furthermore the Government submit that the proceedings had not
been manipulated by instituting criminal proceedings against the
witness W. W would have had, in any event, the right to give evidence
under S. 55 para. 1 of the Code of Criminal Procedure. Moreover the
allegations to be proved by the testimony of W had been supposed to be
true.
5. The Government consider that the second applicant was not
discriminated against on account of his "demi-monde" business contrary
to Article 14 of the Convention. Rather the police correctly assumed
that, by contacting the second applicant, they could get information
about persons producing and dealing with counterfeit money.
6. The Government request the Commission to declare the
application inadmissible as being manifestly ill-founded.
B. The applicants
1. The applicants consider that the facts of the two decisions of
the Commission, referred to by the Government, cannot be compared to
the circumstances of the present application.
Furthermore they do not intend to question the use of "agents
provocateurs" in the suppression of crime in general. However, the
question at issue in the present case is whether or not public
prosecution authorities may incite persons of unblemished character to
commit criminal offences, even if these persons are not suspected of
having already been involved in criminal offences. Without the
instigation by the "agents provocateurs" the applicants would not have
committed any criminal offence. The question whether or not they
freely and on their own initiative decided to enter into the deal is
therefore irrelevant. There are reasonable doubts whether, without
the activities of the "agents provocateurs", counterfeiting offences
had been committed at all.
The applicants consider that they were unfairly treated by the
undercover agent W in the public interest in criminal prosecution.
He instigated them to commit criminal offences in order to get hold
of other suspected criminals. Such behaviour could not be justified
by the public interest in an efficient suppression of crime. The
theory of striking a balance between the public and individual
interests involved disregards that procedural guarantees cannot be
made dependent upon the nature of criminal offences without losing
their function.
2. As regards Article 6 para. 3 (d) of the Convention the
applicants maintain that, had the evidence in the proceedings against
them not been manipulated, there had been no reason to dismiss the
applicants' requests in particular to have access to the files
concerning the criminal proceedings against the undercover agent W.
THE LAW
1. The applicants complain under Article 6 para. 1 (Art. 6-1) of
the Convention that the criminal proceedings against them were unfair
on the ground that the offences of which they were convicted had been
brought about by undercover agents of the German police.
Article 6 para. 1 (Art. 6-1) first sentence of the Convention
provides:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Government consider that the use of "agents provocateurs"
does not, as such, violate the rights and freedoms under the
Convention. In particular, having regard to the right to a fair
hearing under Article 6 para. 1 (Art. 6-1) of the Convention, a fair
balance had to be struck between the public interest in prosecution
and the legitimate interests of the individual concerned, and a wide
margin of appreciation had to be left to the national legislator and
courts. In the present case, the activities of the undercover agents
had been reasonably taken into account when fixing the applicants'
sentences.
The Commission considers that the applicants' complaint, that
the use of the undercover agents to induce them to commit the offences
of which they were eventually convicted was contrary to the principle
of fair trial, raises questions of fact and of law which are of such a
complex nature that their determination requires an examination of the
merits. The application cannot, therefore, be declared manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, but must be declared admissible, no other ground for
declaring it inadmissible having been established.
2. Furthermore the applicants complain that the Munich I Regional
Court refused to summon a witness as requested by the defence and that
the availability of evidence was manipulated. They invoke Article 6
para. 3 (d) (Art. 6-3-d) of the Convention which provides that
everyone charged with a criminal offence has the right to examine or
have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as
witnesses against him. Moreover, the second applicant complains
about discrimination contrary to Article 14 (Art. 14) of the
Convention. The Commission finds that these complaints concern
certain aspects of the fairness of the criminal proceedings as a whole
which cannot be separated from the complaint under Article 6 para. 1
(Art. 6-1) of the Convention which the Commission found to be
admissible above. Accordingly, these complaints must also be declared
admissible.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)