Application No. 12811/87
Manfred RADERMACHER and Klaus PFERRER
against
the FEDERAL REPUBLIC OF GERMANY
REPORT OF THE COMMISSION
(adopted on 11 October 1990)
TABLE OF CONTENTS
PAGE
I. INTRODUCTION
(paras. 1 - 19) ............................................. 1
A. The application
(paras. 2 - 3) ........................................... 1
B. The proceedings
(paras. 4 - 14) .......................................... 1
C. The present Report
(paras. 15 - 19) ......................................... 2
II. ESTABLISHMENT OF THE FACTS
(paras. 20 - 66) ........................................... 4
A. The particular circumstances of the case
(paras. 20 - 61) ....................................... 4
1. Survey
(paras. 20 - 23) .................................... 4
2. The investigations
(paras. 24 - 38) .................................... 4
a) First contacts between the applicants
and W. (1981/1983-1984)
(paras. 24 - 30) ................................ 4
aa) Version of the bill of indictment of the
Munich Public Prosecutor's Office of
27 September 1985
(para. 24) .................................. 4
bb) Version of the second applicant in his
statement of 2 October 1985
(para. 25) .................................. 4
cc) Version of the judgment of the Munich I
Regional Court of 13 December 1985
(para. 26) .................................. 5
dd) Version presented by the Government to
the Commission after November 1988
(paras. 27 - 30) ............................ 5
b) Preparation of a counterfeit money deal (1984)
(paras. 31 - 36) ................................ 5
aa) Version of the bill of indictment of the
Munich Public Prosecutor's Office of
27 September 1985
(paras. 31 - 32) ............................ 5
bb) Version of the second applicant in his
statement of 2 October 1985
(para. 33) ................................. 6
cc) Version of the judgment of the Munich I
Regional Court of 13 December 1985
(paras. 34 - 35) ........................... 6
dd) Version presented by the Government
to the Commission after November 1988
(para. 36) ................................. 7
c) Events leading to the applicants' arrest (1985)
(paras. 37 - 38) ............................... 7
3. The proceedings before the Munich I Regional Court
(paras. 39 - 48) ................................... 7
4. Judgment of the Munich I Regional Court of
13 December 1985
(paras. 49 - 55) ................................... 9
5. Appeal proceedings
(paras. 56 - 58) ................................... 10
6. Criminal investigations conducted against W.
(paras. 59 - 61) ................................... 11
B. Relevant domestic law and practice
(paras. 62 - 66) ..................................... 11
III. OPINION OF THE COMMISSION
(paras. 67 - 104) ........................................ 14
A. Complaints declared admissible (para. 67)........... 14
B. Points at issue
(para. 68) ......................................... 14
C. Article 6 para. 1 of the Convention
(paras. 69 - 92) ................................... 14
1. The investigations
(paras. 70 - 84) ................................. 14
2. The course of the ensuing criminal proceedings
(paras. 85 - 91) ................................. 17
Conclusion (para. 92) .............................. 18
D. Article 6 para. 3 (d) of the Convention
(paras. 93 - 99) ................................... 18
Conclusion
(para. 99) ......................................... 19
E. Article 14 of the Convention
(paras. 100 - 103) ................................. 19
Conclusion
(para. 103) ........................................ 20
F. Recapitulation
(para. 104) ........................................ 20
DISSENTING OPINION of Mrs. J. Liddy ........................... 21
APPENDIX I : HISTORY OF THE PROCEEDINGS ................. 22
APPENDIX II : DECISION ON THE ADMISSIBILITY .............. 24
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. 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 were represented by Mr. T. Vogler, Professor of Law at
Giessen University, and Mr. W. Krüger, a lawyer practising in Munich.
The application is directed against the Federal Republic of
Germany whose Government were represented by their Agent,
Mr. J. Meyer-Ladewig, Ministerialdirigent, Federal Ministry of
Justice.
3. The application concerns complaints under Article 6 paras. 1
and 3 (d) and Article 14 of the Convention that criminal proceedings
against the applicants were unfair on the ground that the offences of
which they were convicted were brought about by undercover agents of
the German police. Furthermore, they claim that the prosecution had
manipulated the availability of evidence at the trial, where the
extent to which German officials were involved in this matter could not
be fully clarified.
B. The proceedings
4. The application was introduced on 17 March 1987 and registered
on 19 March 1987.
5. On 9 November 1987 the Commission decided in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the
application to the respondent Government and to invite them to submit
observations in writing on the admissibility and merits of the
application.
The Government's observations dated 27 January 1988 were
received on 1 February 1988. After an extension of the time-limit,
the applicant submitted his reply on 25 March 1988.
6. On 8 July 1988 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application.
7. The hearing took place on 8 December 1988. The applicants who
attended the hearing in person were represented by MM. T. Vogler and
W. Krüger. The respondent Governemnt were represented by
Mr. J. Meyer-Ladewig, Agent, and by Mr. E. Liedgens, Erster Kriminal-
hauptkommissar, Bavarian Office of Criminal Investigation (Bayerisches
Landeskriminalamt), as Adviser.
8. Following the hearing the Commission declared the application
admissible.
9. The text of this decision was communicated on 15 February 1989
to the parties who were invited to submit any additional observations
or further evidence which they wished to put before the Commission.
The Government were invited to submit further information on
particular issues.
10. Written observations on the merits and further documents were
submitted by the Government on 14 March and 7 April 1989. After three
extensions of his time-limit, the applicants' representative Mr. Vogler
submitted observations in reply and documents on 30 June 1989.
11. On 8 September 1989, upon the Government's request of 4 August
1989, the parties were granted a further time-limit of four weeks to
make their final submissions. The Government's further submissions
were dated 2 October 1989. The applicants made further submissions on
6 and 9 October and 13 November 1989. The Government further
commented upon the applicants' submissions on 4 January 1990.
12. On 8 and 9 March 1990 the Commission resumed its examination
of the case. It decided to invite the parties to submit further
written observations on particular issues.
13. The Government submitted their observations on 25 April and
2 May 1990, the applicants their observations on 27 April and 30 May
1990.
14. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. In the light of the parties'
reaction, the Commission now finds that there is no basis on which
such a settlement can be effected.
C. The present Report
15. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
16. The text of this Report was adopted on 11 October 1990
and is now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
17. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
18. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
19. The full text of the parties' submissions, together with
the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
1. Survey
20. Following contacts between the applicants and W., who later
turned out to be a police informer ("V"-Mann) of the Bavarian Office
of Criminal Investigation (Landeskriminalamt), as well as a police
officer of this Office, the applicants delivered counterfeit US
dollars which had been produced in Belgium. The first applicant was
eventually arrested on 26 February 1985, the second applicant gave
himself up to the police on 31 July 1985.
21. On 13 December 1985 the Munich I Regional Court (Landgericht)
convicted the first applicant of counterfeiting money, 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 to one year's imprisonment.
22. During the proceedings before the Regional Court W. refused to
give evidence. In the Government's subsequent submissions to the
Commission of 14 March 1989, it was explained that on 13 December 1982
an assurance of confidentiality had been given to W. However, after
the introduction of the present application, W. consented in November
1988 to give a full account of the events between 1982 and 1984.
23. Thus, different versions of the events leading to the
applicants' conviction have been presented in the domestic and in the
Convention proceedings. These versions are as follows.
2. The investigations
a) First contacts between the applicants
and W. (1981/1983-1984)
aa) Version of the bill of indictment of the Munich
-----------------------------------------------
Public Prosecutor's Office of 27 September 1985
-----------------------------------------------
24. According to the bill of indictment the second applicant told
the first applicant around 1981 that he knew somebody who would buy
counterfeit money up to 10 million US dollars.
bb) Version of the second applicant in his statement of
---------------------------------------------------
2 October 1985
--------------
25. According to the second applicant's statement he met W., a
businessman, around 1981. W. always had interesting deals to offer.
To the second applicant's surprise, on one occasion W. referred to
illegal deals, namely to a bank director who required 4 million
counterfeit US dollars as security to obtain a credit. In 1981, he,
the second applicant, showed no interest in this deal, nor in the
subsequent years when W. again contacted him with various dubious
offers, including the counterfeit deal. The second applicant also
informed the first applicant who equally displayed no interest.
cc) Version of the judgment of the Munich I Regional
------------------------------------------------
of 13 December 1985
-------------------
26. According to the judgment of the Regional Court, the second
applicant met W. in 1981. In the context of the proposed sale of a
painting, the second applicant visited W. who told him about a banker
intending to buy up to 10 million counterfeit US dollars. The 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; it would be
paid back out of the profits and the counterfeit money would
eventually be destroyed. The second applicant subsequently told the
first applicant about this offer, particularly after the second
applicant and W. had several times spoken about this on the telephone.
dd) Version presented by the Government to the Commission
-----------------------------------------------------
after November 1988
-------------------
27. According to the Government's subsequent submissions, on
12 December 1982 G., a brothel owner, visited W. and offered him
counterfeit US dollars. G. also offered again to come with a further
person, later identified as the second applicant.
28. These events were recorded in a "Note for the file"
("Vermerk") of the Bavarian Office of Criminal Investigation dated
20 December 1982. The Note referred in particular to a "Communication
Police Informer No. 1 of 13.12.1982, 16h00" ("Mitteilung V-Mann Nr. 1
vom 13.12.1982, 16.00 Uhr").
29. G. again visited W. in January 1983, this time accompanied by
the second applicant. At this meeting, G. and the second applicant
offered counterfeit money to W. In agreement with the Bavarian Office
of Criminal Investigation, W. then accepted the offer while telling
the story about the banker who would use the money in order to obtain
a credit.
30. On 14 January 1983 the Aachen Police Presidency
(Polizeipräsidium) sent a telegram to the Bavarian Office of Criminal
Investigation. Therein, particulars were stated about G., inter alia
that he ran brothels. The telegram also referred to a further
unidentified person who later turned out to be the second applicant.
b) Preparation of a counterfeit money deal (1984)
aa) Version of the bill of indictment of the Munich Public
-----------------------------------------------------
Prosecutor's Office of 27 September 1985
----------------------------------------
31. According to the bill of indictment, in autumn 1984 the first
applicant met an unknown person at an Aachen restaurant who offered
counterfeit US dollars. The first applicant then remembered the
conversation with the second applicant three years before, whereupon
he decided to undertake a substantial deal with counterfeit money.
The unknown person eventually told the first applicant that he could
obtain counterfeit US dollars up to 10 million dollars; the first
applicant was given sample counterfeit US dollar bills and was also
told where to find the deliverer of the money, a Belgian.
32. The first applicant then spoke about this opportunity to the
second applicant who organised a meeting with a further, unknown
person. At the meeting this unknown person referred to a bank director
willing to deposit up to 10 million US dollars in his vault in order
to obtain a credit. The first applicant then handed over to the
unknown person at least one banknote which he had received from the
unknown person at the Aachen restaurant.
bb) Version of the second applicant in his statement of
---------------------------------------------------
2 October 1985
---------------
33. According to the second applicant's statement, in autumn 1984
he was contacted by the first applicant who asked him to establish
links with W. The applicants then met W., and the first applicant
gave W. a banknote. During this meeting W. explained details of a plan
which would succeed if the first applicant could provide four million
conterfeit US dollars. The first applicant subsequently told the
second applicant that he wanted to pursue the deal, though in February
1985 he told the second applicant that he had reliable indications
that something was strange about the whole deal and that in his view
the police were behind it all.
cc) Version of the judgment of the Munich I Regional Court
------------------------------------------------------
of 13 December 1985
-------------------
34. According to the Regional Court, in October 1984, while in
Aachen, the first applicant's girlfriend pointed out to him a man in a
restaurant of whom she knew that he was looking for receivers of
counterfeit money. The first applicant then remembered the previous
conversation with the second applicant and decided to deal with this
man. The latter eventually told the first applicant of an
opportunity to obtain counterfeit US dollars in Belgium and gave
him sample counterfeit banknotes. Upon the first applicant's
insistence, the second applicant then arranged a meeting with W. which
took place two weeks later. The latter repeated the offer he had
previously made to the second applicant and this time offered the
first applicant the opportunity to make the deal. The first applicant
then gave W. one of his counterfeit banknotes.
35. In agreement with W., the first applicant then negotiated with
some Belgians the delivery of counterfeit money. At another meeting
in Stuttgart with W. and a certain "Hans", it was agreed that the
counterfeit money to be delivered should consist of notes of 50 or 100
dollars. After the meeting with W., all further contacts took place
between the first applicant and "Hans". "Hans" also examined one
sample passed on to him by the first applicant and expressed his
satisfaction with its quality. He was furthermore informed by the
first applicant of the payment asked by the Belgians for the first
partial delivery of 500,000 US dollars and agreed to it.
dd) Version presented by the Government to the Commission
-----------------------------------------------------
after November 1988
-------------------
36. According to the Government's subsequent submissions, on
16 November 1984 the second applicant contacted W. and announced a visit
with another person. The meeting took place between 22 and 25
November 1984. The other person, namely the first applicant, then
presented a sample 20 US dollar note. This note turned out to belong
to a type of counterfeit notes which had appeared for the first time
in 1975 and had been offered in the Aachen area since 1977. Police
investigations in this matter had so far remained unsuccessful.
Following this further meeting, a police officer of the Bavarian
Office of Criminal Investigation intervened as undercover agent, and
controlled the transactions with the applicants in order to render the
arrest of the deliverers and counterfeiters possible.
c) Events leading to the applicants' arrest (1985)
37. The first applicant received the counterfeit money from
Belgian deliverers on 24 February 1985. The first applicant was then
ordered by "Hans" to come to Munich on 26 February 1985 where, after
negotiating with "Hans", the first applicant was arrested. Upon his
arrest, the police seized about 5,000 counterfeit US dollars in 100
dollar notes of a new type. The second applicant gave himself up to
the police on 31 July 1985.
38. On 12 March 1985 the German authorities were informed that the
Belgian persons who had been involved in the counterfeiting offences
had been arrested.
3. The proceedings before the Munich I Regional Court
39. On 27 September 1985 the Munich Public Prosecutor's Office
charged the first applicant with counterfeiting money, and the second
applicant with having acted as an accessory.
40. In submissions of 2 October 1985, the second applicant
unsuccessfully requested the Munich Public Prosecutor's Office to
cancel the warrant of arrest. The second applicant stated inter alia
that W. was clearly a police informer who for many years had attempted
to persuade him to undertake an illegal deal.
41. On 13 October 1985 the first applicant requested the Munich I
Regional Court inter alia to examine "the actual instigator of the
offence" ("der eigentliche Anstifter der Tat") whose family name he no
longer remembered. The first applicant stated that such instigation
had occurred persistently and over many years, and that the applicants
had been degraded to mere objects.
42. On 6 December 1985 the trial against the applicants opened
before the Munich I Regional Court. Hearings were held on 6, 9
and 13 December 1985. In these proceedings the applicants were
represented by counsel.
43. In the hearing on 6 December 1985, W. refused, on the basis
of Section 55 of the Code of Criminal Procedure (Strafprozessordnung,
see para. 63 below) to give evidence as he might thereby incriminate
himself. W. referred in particular to preliminary investigations
which had meanwhile been instituted against him with regard to the
events at issue in the proceedings against the applicants.
W. therefore did not reply to the first applicant's question whether
or not "Hans", a further person involved in the transactions, was an
official of the Bavarian Office of Criminal Investigation. The
Regional Court decided that W.'s refusal was justified.
44. Also on 6 December 1985, the first applicant asked to hear the
Public Prosecutor concerned as witness on the questions as to whether
he had been informed about instructions given by the Bavarian Office
of Criminal Investigation to a police informer.
45. The Regional Court dismissed this request at the hearing on
9 December 1985. According to the handwritten minutes of the hearing,
the Court considered that one could not renounce the option of using
undercover agents in areas of drug dealing and counterfeiting money.
46. The Court further found that in any event it was irrelevant
whether the Public Prosecutor concerned had known about the activities
of police informers with regard to the applicants. Rather, it was
essential that the measures of the Public Prosecutor's Office did not
exceed the limits of justice (die vom Gerechtigkeitsprinzip gezogenen
Grenzen nicht überschreiten). The Court further considered that on
the basis of the trial so far it was to be assumed that W. had acted
as police informer of the Bavarian Office of Criminal Investigation
and that "Hans" was either also a police informer, or an official of
this Office, and that the disclosure of his identity did not appear
necessary.
47. Further at the hearing on 9 December 1985, the first applicant
requested the investigation files concerning W. to be made available
for consultation. He submitted that the proceedings against W. had
only been instituted in order to grant him a right to refuse to give
evidence.
48. The Regional Court refused this request on 9 December 1985 as
being irrelevant. The Court considered in particular that the fact
that the investigations against W. had been opened later and were not
yet formally terminated could be due to technical reasons. The
Public Prosecutor's Office might also have intended to reserve to W. a
right to refuse to give evidence in order not to force him to give
evidence either about measures of police strategy regarding the
activities of police informers and undercover agents, or about
"Hans". The theoretical possibility that the Public Prosecutor's
Office intended to suppress evidence favourable to the applicants
could be excluded. Having regard to the applicants' comprehensive
statement, there was nothing to indicate that W.'s evidence could in
any way influence the Court's judgment to their advantage. The
applicants' statement that W. had first asked the second applicant
about the delivery of counterfeit US dollars and enticed them to
commit the offences concerned had not yet been refuted.
4. Judgment of the Munich I Regional Court
of 13 December 1985
49. On 13 December 1985 the Munich I Reginal Court convicted the
first applicant of counterfeiting money under Section 146 para. 1 (2)
of the Penal Code (Strafgesetzbuch, see para. 62 below) and the second
applicant of having acted as accessory (Beihilfe). The first
applicant was sentenced to two years and nine months' imprisonment,
the second applicant to one year's imprisonment, though the execution
of his sentence was suspended on probation.
50. The Regional Court based its findings described above on the
statements of the two applicants, the evidence of two police officers
who had arrested the first applicant, the police officer at the
Bavarian Office of Criminal Investigation who had conducted the
investigations against the applicants and an expert from the German
Federal Bank.
51. As to the applicants' personal circumstances, the Regional
Court considered that by 1984 the first applicant had become highly
indebted. Moreover, he had previously been convicted on various
occasions of theft, of having negligently caused bodily injuries in
road traffic, of tax evasion, of absconding after a traffic accident,
and of manslaughter. The second applicant had run brothels until
1984, and then worked as a croupier in a casino. He had had no
previous convictions.
52. As regards the applicants' defence that they could not be
punished on the ground that the offence had been brought about by
undercover agents the Regional Court, considered the
applicants' statements, the restricted statements of the police
officers heard as witnesses, and the fact that the defence considered
the evidence to be correct (Als-wahr-Unterstellung). As a result the
Court concluded that W. was a police informer of the Bavarian Office of
Criminal Investigation and "Hans" either also a police informer or an
official of this Office.
53. 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 dealers in counterfeit money in demi-monde milieu without a concrete initial suspicion against 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 and 'Hans' entered into action in a concrete way, pretending to be interested in buying counterfeit money, own for a long time - the connection - and thereby created a concrete suspicion. It cannot therefore be said here that there was instigation of the accused by undercover agents of the Bavarian Office of Criminal Investigation." "Das einzige Bedenken gegen die Lockspitzeltätigkeit könnte im vorliegenden Fall daraus fließen, daß konkreten Anfangsverdacht gegenüber die Angel nach potentiellen Falschgeldhändlern auswarf. Indes kann auf ein solches Vorgehen bei gefährlicher 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 Zeitpunkt, als vorgebliche Falschgeldabnehmer in Aktion traten, hatte der Angeklagte Eigenaktivitäten entwickelt - - und damit einen konkreten Verdacht gesetzt. Von einer Anstiftung der Angeklagten durch V-Leute des Bayerischen Landeskriminalamts kann daher hier keine Rede sein." 54. In its legal assessment the Regional Court stated that, under the rule of law (Rechtsstaatsprinzip), the applicants' conviction was not precluded by the activities of the undercover agents. The applicants' general determination to commit the offence had only been given a concrete form by making them believe that they had a wealthy client. There had been no paramount influence of the undercover agents on the criminal activities in the present case. In any event, even if the limits permitted for activities of undercover agents had been exceeded, this would not hinder the criminal proceedings instituted against the applicants. Rather it could only lead to a substantial reduction of punishment. In the present case it could not be said that there was an overly powerful (übermächtig) influence by the undercover agents. 55. In fixing the sentences the Court considered as mitigating circumstances that the offences committed by the applicants had been strongly supported by the undercover agents. 5. Appeal proceedings 56. On 1 July 1986 the Federal Court of Justice (Bundesgerichts- hof) dismissed the applicants' appeals on points of law (Revisionen). This Court found that the police 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 had sufficiently taken into account the activities of the prosecution authorities when determining the sentences. 57. 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. The Constitutional Court considered that the use of undercover agents, either police officers or police informers, could, if at all, only in exceptional cases bar criminal proceedings. It stated that the use of police informers was necessary for combating the most dangerous crimes such as, inter alia, counterfeiting of money. In the present case, the circumstances as a whole did not disclose any reason why the rule of law should preclude the applicants from being prosecuted. The first applicant had not directly been 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. Both applicants had well been in control of their decisions. 58. 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. 6. Criminal investigations conducted against W. 59. From the Government's submissions at the hearing before the Commission on 8 December 1988 and documents subsequently submitted by the applicants on 30 June 1989 it transpires that in 1985 criminal investigations were conducted against W. on suspicion of counterfeiting money. On 31 October 1985 the Munich Public Prosecutor's Office requested the Bavarian Office of Criminal Investigation to interrogate W. On 11 November 1985, W. was interrogated as to his particulars. 60. On 20 December 1985 the Munich Public Prosecutor's Office inquired about the exact date when W. had informed the Office about the first applicant's involvement in counterfeit money and whether there were any indications as to whether originally W. had approached the first applicant, or vice versa. On 27 June 1986 the Bavarian Office replied that W. had filed a report on "Persons offering counterfeit money in the Aachen area anbieter aus dem Raum Aachen approached W. and not vice versa. W. had only reacted to an offer of the second applicant. W. and the second applicant had met for the first time between 10 and 16 January 1983. 61. On 9 July 1986 the Munich Public Prosecutor's Office decided to terminate the proceedings. It noted that while W. had not replied to the charges, the statements of the first applicant contradicted the results of the police inquiries. According to the latter, originally the first applicant had approached W., and not vice versa. B. Relevant domestic law and practice 62. Section 146 para. 1 of the German Penal Code (Strafgesetzbuch) defines counterfeiting of money as follows: "A prison sentence of not less than two years shall be imposed on any person who: 1. Forges money with the intention of bringing it into circulation as true or of enabling such circulation, or who falsifies money with the intention of making it appear to have a higher value, 2. Supplies counterfeit money with such an intention, 3. Circulates as true counterfeit money which has been forged, falsified or supplied under the conditions enumerated in sub-paras. 1 or 2." "Mit Freiheitsstrafe nicht unter zwei Jahren wird bestraft, wer 1. Geld in der Absicht nachmacht, daß es als echt in den Verkehr gebracht oder daß ein solches Inverkehrbringen ermöglicht werde, oder Geld in dieser Absicht so verfälscht, daß der Anschein eines höheren Wertes hervorgerufen wird, 2. falsches Geld in dieser Absicht sich verschafft oder 3. falsches Geld, das er unter den Voraussetzungen der Nummern 1 und 2 nachgemacht, verfälscht oder sich verschafft hat, als echt in den Verkehr bringt." 63. Sections 48 to 71 of the German Code of Criminal Procedure (Strafprozessordnung) govern the hearing of witnesses. Section 55 provides: "1. Every witness may refuse to give information to such questions the reply to which could bring about the danger for him or a relative mentioned in Section 52 that he will be prosecuted on account of a criminal offence or a regulatory offence. 2. The witness must be told about his right to refuse to give information." "1. Jeder Zeuge kann die Auskunft auf solche Fragen verweigern, deren Beantwortung ihm selbst oder einem der in § 52 Abs. 1 bezeichneten Angehörigen die Gefahr zuziehen würde, wegen einer Straftat oder einer Ordnungswidrigkeit verfolgt zu werden. 2. Der Zeuge ist über sein Recht zur Verweigerung der Auskunft zu belehren." 64. Sections 151 to 177 of the Code of Criminal Procedure regulate the principles of criminal prosecution and the preparation of the indictment. Section 160 provides in particular that the Public Prosecutor's Office, as soon as it gets knowledge of the suspicion that a criminal offence has been committed, has to investigate the facts in order to decide whether to prefer an indictment. The Public Prosecutor's Office thereby does not only have to establish the evidence against the suspected person, but also the evidence in his favour. According to Section 163 para. 1 the police services and officials have to investigate criminal offences and take all urgent measures to prevent collusion in a case. 65. Sections 226 to 275 govern the trial before the court. As regards the taking of evidence, Section 244 paras. 2 and 3 provide that the court, in order to establish the truth, has to take evidence as regards all facts relevant for its decision. A request to take evidence has to be refused if the taking of evidence is inadmissible. Otherwise such a request may only be refused, if the taking of evidence is superfluous, the issue being well known, if the fact to be proved is irrelevant for the decision or already proved, if the evidence is unfit or out of reach, if the request has been filed in order to delay the proceedings, or if a relevant allegation on behalf of the accused can be dealt with as if it were true. Under Section 261 the court has a free discretion in assessing the evidence taken at the trial (freie Beweiswürdigung). 66. The activities of police informers and undercover agents have been regulated in directives of the Bavarian Ministry of Justice and of the Interior of 27 March 1986. The directives define a police informer ("V-Mann") as a person who does not belong to the prosecution authorities and is willing to support the authorities for a longer period in the prevention of crime. Such a person's identity will in general not be disclosed. The directives provide, inter alia, that co-operation with such a police informer and assurance of confidentiality presuppose in general that a balance be struck between the procedural rules that the taking of evidence should take place before the trial court (Unmittelbarkeit der Beweisaufnahme) and that the facts should be fully established (vollständige Sachverhalts- erforschung), and the efficient performance of public tasks. The principle of a fair trial under the rule of law has to be observed. Prosecution authorities should only make use of police informers, if the prevention of crime is otherwise impossible or far more difficult. The further investigation should then aim at obtaining evidence which can be produced in court and render the evidence of the informer superfluous. III. OPINION OF THE COMMISSION A. Complaints declared admissible 67. The following complaints were declared admissible: - that the criminal proceedings against the applicants were unfair on the ground that the offences of which they were convicted were brought about by undercover agents; - that the Munich I Regional Court refused to summon a witness as requested by the defence and that the availability of the evidence was manipulated; and - that the second applicant was discriminated against by being induced by state organs to commit a criminal offence on account of his working and living in a "demi-monde milieu". B. Points at issue 68. Accordingly, the issues to be determined are: - whether the criminal proceedings against the applicants were unfair contrary to Article 6 para. 1 (Art. 6-1) of the Convention; - whether in the criminal proceedings against the applicants their defence rights under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention were disregarded; and - whether Article 14 (Art. 14) of the Convention has been violated in the case of the second applicant. C. Article 6 para. 1 (Art. 6-1) of the Convention 69. The applicants allege a breach of Article 6 para. 1 (Art. 6-1) of the Convention which provides, insofar as relevant, as follows: "1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ..." 1. The investigations 70. The applicants submit that, contrary to the principle of fair trial as guaranteed by Article 6 para. 1 (Art. 6-1), the counterfeiting of money, of which they were convicted, was initiated and controlled by undercover agents of the Bavarian Office of Criminal Investigation although there was not the slightest reason for entertaining any suspicion against them. Crimes were thus not prevented, but produced by the prosecution authorities. Such activities could not be justified by the public interest in an efficient suppression of crime. 71. The applicants express doubts as to whether W. had contacted the Bavarian Office of Criminal Investigation for the first time on 13 December 1982. In fact, W. had known G. for some time. The applicants see a contradiction in that, if in January 1983 the second applicant had indeed offered counterfeit money to W., the latter had still regarded it as necessary to bait him with the story of the bank director. In fact, in January 1983 W. had not been offered counterfeit money. W. himself had offered the second applicant a host of dubious deals. It could furthermore not be said that in January 1983 W. had not known the second applicant's particulars since W. had frequently contacted the second applicant about the sale of a picture. In retrospect the applicants consider that the Bavarian Office of Criminal Investigation had officially directed W. to tell the story about the bank director. 72. The Government maintain that the use of undercover agents does not, as such, violate the rights and freedoms under the Convention. In particular, a right not to be convicted on account of special circumstances such as the use of undercover agents is not an indispensable requirement of a fair hearing under the rule of law. In striking a balance in such cases between the public interest in the prevention of organised and dangerous crime and the legitimate interests of the individual concerned, a wide margin of appreciation has to be left to the national authorities. 73. The Government further submit that at the time of these events, counterfeit US dollars had been circulating in the Aachen area for some time. The second applicant and later also the first applicant had each offered counterfeit money to W. The police were aiming at finding the producers of this money and the manner in which it was distributed. This aim was achieved in view of the fact that the Belgian persons who had given the applicants the counterfeit money were eventually arrested. 74. The Commission notes that the German courts dealing with the applicants' case had regard to the problem that undercover agents had been involved in the criminal offences concerned. The Munich I Regional Court considered that, under the rule of law, the applicants' conviction was not precluded by the activities of the undercover agents which had not exceeded the limits permitted in the field of dangerous delinquency. The Federal Court of Justice confirmed the legitimate interest of the prosecution authorities to investigate the matter, and considered that their activities had been sufficiently taken into account when fixing the sentence. The Federal Constitutional Court stated that the use of undercover agents was necessary for combating the most dangerous crimes and could, if at all, only in exceptional cases bar criminal proceedings. 75. The Commission observes that the conduct of prosecution authorities in the prevention and investigation of criminal offences is primarily a matter for regulation by domestic law. In particular, in the field of dangerous delinquency, such as counterfeiting money, the prosecution authorities may consider it necessary, in some circumstances, to rely on police informers and undercover agents (cf. Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166, p. 25, para. 44). In such cases, the Commission has to determine whether the subsequent criminal proceedings, considered as a whole, were fair as required by Article 6 para. 1 (Art. 6-1) (cf. Eur. Court H.R., Barbera, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 68). 76. The problem whether the fairness of criminal proceedings is affected by the fact that an undercover agent of the police authorities played an important part in bringing about the offence which is the basis of the criminal charge has been raised in two previous cases before the Commission (No. 9165/80, Dec. 6.7.81, and No. 10747/84, Dec. 7.10.85 - not published). In neither of these cases did the Commission find a violation of Article 6 para. 1 (Art. 6-1), and the circumstances in these cases were such that the Commission was not called upon to take a general position on the issue of undercover agents. Also in the present case the facts established, in the Commission's opinion, do not require a determination of this issue. 77. The parties agree that the police informer W. and an undercover agent played an important and active part during the long series of events which finally resulted in the delivery of counterfeit money, but they differ on the question to what extent State organs were involved in the criminal offences committed by the applicants, and in particular on the crucial issue as to whether the offences were committed on W.'s initiative. 78. On this point the applicants stated that, before the events leading to their arrest, the second applicant had been in frequent contact with W. The applicants originally stated that these contacts had lasted since 1981. W. had always had many deals to offer. When the second applicant had visited W. in order to discuss an entirely different matter, W. had told him about an illegal deal, namely about a banker who wished to buy a large sum of counterfeit US dollars to be used as security for a credit. 79. In the course of the trial, this version of the events was not contradicted by the Public Prosecutor, and in essence it formed the basis of the Regional Court's findings. The Munich I Regional Court recognised that, as from 1981, W. had been in contact with the second applicant. Without having any concrete suspicions against the second applicant, W. had nevertheless tried to obtain, through him, information about possible traders in counterfeit currency. In the Regional Court's opinion, W. had not thereby incited the second applicant to commit a criminal offence. However, when determining the sentences for both applicants, the Regional Court considered that it was a mitigating factor that their offences had been considerably promoted by the activities of the undercover agent. 80. Before the Commission, the Government stated that the facts indicated in the Regional Court's judgment were not in all respects true. 81. The Government submitted that in view of an assurance of confidentiality given to the police informer W., the Public Prosecutor had not been able, at the trial, to give the Court a full and truthful account of the events, and it was only in the course of the proceedings before the Commission and after W.'s consent had been obtained in November 1988 that such an account could be given. 82. According to the Government's new submissions, on 12 December 1982 G. had offered W. counterfeit US dollars. In January 1983 G. had again visited W. together with the second applicant whom W. had then met for the first time and could not identify. On that occasion, the second applicant had declared himself willing to deliver counterfeit US dollars. In agreement with the Bavarian Office of Criminal Investigation, W. had accepted the offer while telling the story about the banker who would use the counterfeit money in order to obtain a credit. In November 1984 the second applicant had again contacted W. and announced a visit with the first applicant. This meeting took place between 22 and 25 November 1984. The first applicant had then presented a sample US note. Following this further meeting a police officer of the Bavarian Office of Criminal Investigation had intervened as an undercover agent, and controlled the transactions with the applicants in order to enable the arrest of the deliverers and counterfeiters. 83. The Commission notes that, according to the Government's new account of the events, the police informer W. had not taken the initiative to arrange a delivery of counterfeit money, but only reacted to an offer by G. who visited him on 12 December 1982. Furthermore, W. had not incited the second applicant to commit the offence but the second applicant had already been prepared to participate in the delivery of counterfeit money and had, together with G. and on their own initiative, come to see W. in order to follow up G.'s earlier offer of 12 December 1982. 84. In the absence of any evidence to the contrary, and in view of the document of 20 December 1982 presented to the Commission (see paras. 27 et seq. above) the Commission accepts this version of the origin of the offences as corresponding to the truth. It follows that W. cannot be regarded as the real initiator of the offences. Consequently, it is not necessary to examine further the question whether there was a violation of Article 6 para. 1 (Art. 6-1) on the ground that the offences had been brought about by the activities of an undercover agent. 2. The course of the ensuing criminal proceedings 85. The applicants contend that the Government's new submissions at this stage reveal that the Public Prosecutor's Office, at their trial before the Munich I Regional Court, did not disclose the true results of its investigations as to the events which resulted in their committing criminal offences, and thus supported an incorrect establishment of facts. They also complain that the Public Prosecutor's Office opposed their attempts at the trial to have the extent to which State organs were involved in the matter cleared up. 86. The Government maintain that the applicants' rights of defence and right to a fair trial were not impaired by the fact that the prosecution authorities kept silent as to their statements about the activities of the police informer W. The applicants did not suffer any injustice, as the Regional Court had proceeded on the assumption that their statements about the activities of the undercover agents were true. Had the truth been established at the trial, the Regional Court could not have taken mitigating circumstances into account when fixing the sentences. 87. The Commission notes that the Public Prosecutor's Office, which had under the German Code of Criminal Procedure to conduct the preliminary investigations against the applicants, to prepare the indictment and to conduct the prosecution at the trial, concealed important facts concerning the counterfeiting offences committed by the applicants. In particular, in the indictment of 27 September 1985, the Public Prosecutor's Office did not disclose that persons acting on behalf of the Bavarian Office of Criminal Investigation had been involved in the counterfeiting offences in question. At the trial before the Munich I Regional Court, the Public Prosecutor's Office did not oppose the applicants' statements as to the origin of their offences, in particular the activities of the undercover agents and thereby caused the Regional Court to base its conviction of the applicants on assumptions which were in some respects incomplete or untrue. 88. Thus, the version concerning the counterfeiting offences which the Public Prosecutor's Office did not challenge before the Regional Court in fact largely corresponded to the version presented by the applicants to the Regional Court. The Commission also notes here the description of the facts by the second applicant in his statement of 2 October 1985 (see paras. 25, 33 above). It thus appears that the applicants found it to be in their interest at the trial to accept the version of the Public Prosecutor's Office. 89. Moreover, the Commission has already found that the version which was not contested by the Public Prosecutor's Office in the proceedings before the Regional Court and the version subsequently presented by the Government to the Commission differed with regard to the initiative for the counterfeit money deal (see para. 83 above). According to the original version, without having any concrete suspicion against the second applicant, W. had tried to obtain through him information about possible traders in counterfeit currency. According to the second version, W. had only reacted to an offer by G.; this offer was subsequently further pursued by the second applicant and eventually also by the first applicant. 90. The original version was, therefore, more advantageous for the applicants in that W. was considered to be the instigator of the deal. Indeed, in its judgment of 13 December 1985 the Regional Court considered this to be a mitigating element which led it to reduce the applicants' punishment. 91. In these circumstances, the Commission does not find that the applicants were deprived of a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Conclusion 92. The Commission concludes, by 11 votes to 1, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention. D. Article 6 para. 3 (d) (Art. 6-3-d) of the Convention 93. The applicants also allege a breach of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention which provides as follows: "Everyone charged with a criminal offence has the following minimum rights: ... d. 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; ..." 94. The applicants complain that contrary to Article 6 para. 3 (d) (Art. 6-3-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. could refuse to give evidence. 95. The Government submit that Article 6 para. 3 (d) (Art. 6-3-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 official agencies 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. 96. The Commission recalls that the applicants requested the Regional Court to hear the responsible Public Prosecutor as a witness with regard to undercover activities, and that the Court did not grant this request, since it regarded such a hearing to be without importance to the proceedings (see paras. 44-46 above). The Commission observes that it is in the first place for the national courts to assess the relevance of evidence (see Eur. Court H.R. Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). However the Commission finds no indication that the refusal to hear this witness affected the applicants' rights of defence contrary to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention. 97. The Commission also finds no indication that the authorities manipulated evidence by instituting a criminal investigation against the undercover agent W., in order to make it possible for him subsequently to invoke the ongoing investigation as a reason for refusing to give evidence in the trial against the applicants. 98. In any event, even without such an investigation, W. could have refused to give evidence which might incriminate himself (see para. 63 above). Conclusion 99. The Commission concludes, by 11 votes to 1, that there has been no violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention. E. Article 14 (Art. 14) of the Convention 100. The second applicant further alleges a breach of Article 14 (Art. 14) of the Convention which provides as follows: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." 101. The second applicant submits that he has been subjected to discrimination on the ground that he has been induced by state organs to commit a criminal offence on account of his working and living in a "demi-monde milieu". 102. The Commission considers, however, that in this respect, no separate issue arises under Article 14 (Art. 14) in addition to the issues relating to Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, which have been dealt with above. Conclusion 103. The Commisison concludes by a unanimous vote that no separate issue arises under Article 14 (Art. 14) of the Convention. F. Recapitulation 104. The Commission concludes: - by 11 votes to 1, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 92); - by 11 votes to 1, that there has been no violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention (para. 99); - by a unanimous vote that no separate issue arises under Article 14 (Art. 14) of the Convention (para. 103). Secretary to the Commission President of the Commission (H.C. Krüger) (C.A. Nørgaard) Dissenting opinion of Mrs. J. LIDDY I regret that I was unable to join the majority and consider that there was a violation of paragraph 1 of Article 6, read in conjunction with paragraph 3 (d) of Article 6 of the Convention. The Commission has based its opinion on material before it which is significantly different from that which was before the domestic courts. It seems that in this case it was possible under the law of the Federal Republic of Germany both for the domestic courts to base their findings of fact and law on an incomplete version of the relevant events and to refuse the taking of evidence which would have provided a fuller picture of the relevant events. The case raises general questions concerning the respective rules of the prosecution and the judiciary in the trial of criminal offences in different legal systems but under the Convention it suffices for me to note that it is the object and purpose of Article 6 to protect the rights of the defence (Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14 et seq., para. 31). The connection with Article 6 para. 3 (d) is decisive for me. The fact that the Regional Court based its considerations on incomplete facts may also have influenced its decision not to hear W., who had been called as a witness on the question of his activities in the delivery of the counterfeit money. W. was permitted not to give evidence under Section 55 of the Code of Criminal Procedure in order not to incriminate himself. Moreover, two requests of the defence to take evidence as to the alleged involvement of State organs in the offences were dismissed as irrelevant. This very evidence could have provided the court with relevant material for a consideration on a solid factual basis of the consequences in law of the use of undercover agents whose actions might border on those of agents provocateurs. It cannot be excluded that the Court's decisions on the taking of evidence at the trial would have been different if the prosecution had been based on the facts as they were known to the Public Prosecutor's Office. I conclude that in these circumstances, and in particular the fact that there was relevant information peculiarly within the knowledge of the prosecution, the applicant was not in a position to obtain the examination of witnesses on his behalf under the same conditions as witnesses against him. There has therefore, in my opinion, been a violation of paragraph 1, read in conjunction with paragraph 3 (d), of Article 6 of the Convention. APPENDIX I HISTORY OF PROCEEDINGS Date Item ______________________________________________________________________ 17 March 1987 Introduction of the application 19 March 1987 Registration of the application Examination of Admissibility 9 November 1987 Commission's decision to invite the Government to submit observations on the admissibility and merits of the application 27 January 1988 Government's observations 25 March 1988 Applicants' observations in reply 8 July 1988 Commission's decision to invite the parties to a hearing on the admissibility and merits of the application 8 December 1988 Hearing and decision to declare the application admissible Examination of the merits 15 February 1989 Decision on admissibility communicated to the parties 14 March, 7 April, ) 2 October 1989, ) Government's further submissions 4 January 1990 ) 30 June, ) 6, 9 October, ) Applicants' further submissions 13 November 1989 ) 7 October 1989, ) Commission's consideration of the 10 February 1990 ) state of proceedings 8, 9 March 1990 Commission's deliberations on the merits 25 April, 2 May 1990 Government's further submissions 27 April, 30 May 1990 Applicants' further submissions 7 July 1990 Commission's consideration of the state of proceedings 2 October 1990 Commission's deliberations on the merits. 11 October 1990 Commission's final vote and adoption of the Report.
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