AS TO THE ADMISSIBILITY OF
Application No. 28994/95
by S. E.
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
S. TRECHSEL
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 October 1995
by S. E. against Switzerland and registered on 30 October 1995 under
file No. 28994/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a citizen of Yugoslavia, is a lorry driver
residing in Nürensdorf in Switzerland. Before the Commission he is
represented by Mr P. Joset, a lawyer practising in Binningen in
Switzerland.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
a) Events leading to the applicant's arrest
In 1991 the Federal Attorney's Office (Bundesanwaltschaft) was
informed that a certain P. was selling heroin from France to interested
persons in Switzerland. The Federal Attorney's Office set up an
undercover agent, "Peter", who feigned interest. P. told "Peter" that,
rather than coming to Switzerland, he would send a certain M. The
Federal Attorney's Office then set up a further undercover agent,
"Markus", who took up contact with M., feigning interest. At meetings
of 11 and 14 December 1991 M. and "Markus" agreed to a transfer of
1 kilo of heroin.
On 7 January 1992 M. informed "Markus" that he could no longer
enter Switzerland as he lacked a visa, and he proposed that his friend,
the applicant, transfer the drugs. Criminal investigations were then
instituted against the applicant, and his telephone was monitored in
January 1992.
On 13 January 1992 "Markus" contacted the applicant and asked to
meet him. They agreed that the drugs should be handed over on
17 January 1992. However, the transfer did not eventuate, whereupon
M. informed the applicant that he, M., would come personally to Zürich
on 29 January 1992. The applicant passed this information on to
"Markus", whereupon it was agreed that they - the applicant and
"Markus" - would meet on 30 January 1992 at a motorway restaurant near
Berne.
When on 30 January 1992 the applicant and "Markus" met in the
café of the motorway restaurant, about 20 policemen in civilian clothes
were present. The applicant first showed "Markus" a heroin sample.
When the latter expressed his dissatisfaction, the applicant offered
another sample to which "Markus" agreed. It was agreed to sell 1,050
grammes of heroin for the price of 110,000 Swiss Francs. The applicant
and "Markus" then walked over to the applicant's car where he was
arrested. Upon his arrest, the applicant was found to have a pistol
on him.
b) Proceedings before the Mittelland Jury Court
Criminal proceedings then instituted against the applicant. He
maintained that he was innocent in that everything had been organised
by others, and that he had been compelled to act.
During the investigations the applicant was confronted with
"Markus" who was masked (maskiert). It appears that during the
confrontation the applicant was admonished and eventually had to be
sent out of the room, though his lawyer remained. During this
confrontation, "Markus" identified the applicant as the person with
whom he had conducted the drug deal.
The trial took place before the Mittelland Jury Court
(Geschworenengericht des Mittellands) of the Canton of Berne and was
conducted in public, the applicant having unsuccessfully requested
proceedings in camera.
At the hearing of 11 November 1993 "Markus" was covertly
(verdeckt) heard as a witness by the Jury Court. His identity was not
disclosed, and he sat in a neighbouring room with make-up on. The door
to the court room was left open, and the three judges had eye contact
with him, though not the jury members, the applicant and his lawyer.
Questions and replies were transmitted by microphone and loudspeaker.
A policeman was present in the neighbouring room to ensure that
"Markus" remained alone. Before the questioning took place, both a
high standing civil servant of the Federal Administration and the
investigating judge confirmed as witnesses that the person in question
was "Markus" who had acted as undercover agent in relation to the
applicant.
At the hearing, the applicant's lawyer filed an objection,
stating that he could not accept that the Court should have the right
to see "Markus" whereas he could not. The lawyer then left the court
room while "Markus" was being questioned. After the lawyer had left,
the applicant stated that he could not identify "Markus".
In its judgment of 19 November 1993, numbering 196 pages, the
Jury Court convicted the applicant, inter alia, of having dealt with
at least one kilo of heroin, and sentenced him to five and a half
years' imprisonment. The applicant was acquitted of some charges of
drug trafficking and of the charges of having breached arms
regulations.
In reaching its conclusions, the Court relied on statements of
various police officers, including "Markus", and of the Federal
Attorney's Office and on the monitored telephone conversations. In its
judgment, the Jury Court found, inter alia, that the identity of
"Markus" could not be disclosed as he would otherwise fear reprisals.
Moreover, once identified he could no longer be used for further
undercover activities.
c) Proceedings before the Court of Cassation of the Canton of Berne
The applicant's plea of nullity (Nichtigkeitsklage) was dismissed
by the Court of Cassation (Kassationshof) of the Canton of Berne on
15 September 1994. In its decision, the Court of Cassation noted,
inter alia, that the identity of "Markus" should not be disclosed as
the names of various other persons actively involved in the drug
business had transpired during the proceedings.
d) Proceedings before the Federal Court
The applicant filed public law appeals (staatsrechtliche
Beschwerden) against the decisions of the Jury Court and of the Court
of Cassation, and a plea of nullity (Nichtigkeitsbeschwerde) against
the decision of the Jury Court. The public law appeals and the plea
of nullity were dismissed by the Federal Court (Bundesgericht) in two
decisions of 21 March 1995. In its judgment concerning the
applicant's public law appeals, the Federal Court found that, insofar
as the Court of Cassation had dealt with the applicant's complaint
under Article 8 of the Convention about the use of an undercover agent,
the applicant had insufficiently raised this point in his public law
appeal. The Court noted that in any event the European Court of Human
Rights had found no violation in respect of such a complaint in the
case of Lüdi v. Switzerland (Eur. Court HR, judgment of 15 June 1992,
Series A no. 238).
The Court further dealt with the applicant's complaint that
S. 144 of the Code of Criminal Procedure of the Canton of Berne (see
below, Relevant domestic law and practice) as to the identification of
witnesses had not been complied with. It noted that the applicant had
not contested that the person sitting in the neighbouring room at the
trial was "Markus"; that the latter had identified the applicant at a
confrontation during the investigations; and that the manner in which
the statements of "Markus" had been transmitted at the trial had not
disfigured his voice. As a result, it was clear for all at the trial,
including the applicant, that the person in the neighbouring room was
the undercover agent who had negotiated with the applicant. Moreover,
the applicant had been aware of the undercover agent's profession and
office address. In view thereof, there had been no arbitrary
application of S. 144 if the applicant had not been told the name of
"Markus".
Insofar as the applicant complained that the members of the Jury
had not seen the undercover agent, the Federal Court found that the
court, too, had been able to identify the witness by comparing the
voice at the trial with that heard on the tapes of the monitored
telephone conversations.
Insofar as the applicant complained that the trial had been
conducted in public, the Federal Court agreed with the Jury Court's
decision according to which the public could only exceptionally be
excluded.
The Federal Court then dealt with the applicant's complaint about
the manner in which the undercover agent had been questioned at the
trial:
"In the present case the applicant was confronted with the undercover agent during the preliminary investigations, and could put questions to him at the trial. Thus, he was granted the rights of Article 6 para. 3 (d) of the Convention both during the investigations and at the trial. He could put supplementary questions to the undercover agent, and call in question the persuasiveness of his statements. As already pointed out, there was no complete anonymity. Within the framework of his culpable behaviour the applicant knew the undercover agent and was aware of his actual professional functions. At the trial he could identify him on the basis of his voice, which he knew very well; the technical installations therefore enabled him to identify and to confirm that the witness heard was the undercover agent at issue ... Finally, it is incorrect if the applicant's lawyer objects that the visual and acoustical screen affected his right of presence at the trial and implied that he was partly excluded from the proceedings. The witness was 'questioned in his presence' and he 'could have put questions' to him. It is true that his lawyer left the court room and, therefore, did not exercise his right to put questions, although this would have actually been possible. The Jury Court considered this situation ex officio and found that the lawyer had remained absent purely out of protest ... The Court President had drawn his attention to the fact that he would thus intentionally waive his right to put questions to the incriminating witness ... The applicant thus participated personally in the proceedings and could personally put questions and dispute the incriminating statements ... The Court extensively questioned the witness in public proceedings and was able to obtain certainty in the case on the basis of the earlier statements, the notes for the file and the other witnesses and telephone monitorings, and in particular compare these statements with those of the applicant ... Thus, the case clearly differs from the case of Kostovski v. the Netherlands (Eur. Court HR, judgment of 23 May 1989, Series A no. 166, paras. 42 et seq., 16 et seq.). There is therefore no breach of Article 6 para. 3 (d) of the Convention or of S. 4 of the Swiss Federal Constitution. In fact, the questioning of the witness was only screened visually. The cantonal authorities had to assess all the various interests. They had to consider the rights to be granted to the accused as well as the principle of the publicity of the proceedings, the personal interests of the witnesses, the police interest in employing and protecting its undercover agents, and the public interest in the security of officers and the effective combatting of serious narcotics crimes. The decision to question the witness with a visual screen and to keep his name secret duly considered these interests without limiting the rights of the defence. If the proceedings are considered as a whole, the name of the undercover agent, and the knowledge of his appearance were unnecessary for an effective defence. The cantonal authorities ensured that the applicant had controlled and fair proceedings ..." "Im zu beurteilenden Fall wurde der Beschwerdeführer mit dem V- Mann im Ermittlungsverfahren konfrontiert, und im Hauptverfahren konnte er ihn befragen. Ihm wurden somit die Rechte von Art. 6 Ziff. 3 lit. d EMRK im Ermittlungsverfahren vor Gericht eingeräumt. Er konnte Ergänzungsfragen an den V-Mann stellen und die Überzeugungskraft seiner Aussagen erschüttern. Wie oben ausgeführt, war die Anonymität des V- Manns keine vollständige. Im Rahmen des zu beurteilenden strafbaren Verhaltens kannte der Beschwerdeführer den V-Mann und wusste nunmehr um dessen eigentliche amtliche Funktion. Er konnte ihn im Hauptverfahren aufgrund seiner Stimme identifizieren, da ihm diese bestens bekannt war; die technischen Vorkehren ermöglichten ihm somit, zu erkennen und zu bestätigen, dass der gehörte Zeuge der fragliche V-Mann war ... Schliesslich geht der Einwand des Verteidigers fehl, die optische und akustische Abschirmung berühre sein Anwesenheitsrecht im Hauptverfahren und bedeute seinen teilweisen Ausschluss aus dem Verfahren. Der Zeuge wurde 'in seiner Anwesenheit befragt', und er hätte ihm 'Fragen stellen können.' Der Verteidiger verliess allerdings den Gerichtssaal und übte deshalb das Fragerecht nicht aus, obwohl ihm das tatsächlich möglich gewesen wäre. Das Geschworenengericht hat diese Situation von Amtes wegen beurteilt und ausgeführt, der Verteidiger sei aus reiner Protesthaltung abwesend und somit aus ungenügenden Gründen ... Der Gerichtspräsident habe ihn darauf hingewiesen, dass er so absichtlich das Fragerecht gegenüber den Belastungszeugen verwirke ... Der Beschwerdeführer nahm somit persönlich am Verfahren teil und konnte persönlich Fragen stellen sowie die belastenden Aussagen bestreiten ... Das Gericht befragte den Zeugen ausführlich in öffentlicher Verhandlung und konnte sich aufgrund von dessen frühreren Aussagen und Aktennotizen sowie der übrigen Zeugen und der Telefonabhörungen im einzelnen Gewissheit in der Sache verschaffen und insbesondere diese Aussagen mit den Ausführungen des Beschwerdeführers vergleichen ... Damit unterscheidet sich dieses Vorgehen grundsätzlich von jenem im Fall Kostovski (EGMR in der Sache Kostovski c. Niederlande vom 23. Mai 1989, Série A, Vol. 166, Ziff. 42 ff., 16 ff.) Eine Verletzung von Art. 6 Ziff. 3 lit. d EMRK und Art. 4 BV ist daher zu verneinen. Tatsächlich war die Einvernahme nur optisch verdeckt. Die kantonalen Behörden mussten eine umfassende Güterabwägung vornehmen und dabei die Gewährleistung der Rechte des Angeklagten, aber auch den Grundsatz der Verfahrensöffentlichkeit, die persönlichen Interessen des Zeugen, das polizeiliche Interesse am Einsatz und Schutz seiner V-Leute wie das öffentliche Interesse an der Sicherheit der Beamten und einer wirksamen Bekämpfung der schweren Betäubungsmittelkriminalität berücksichtigen. Der Entscheid, den Zeugen optisch verdeckt einzuvernehmen und dabei den Namen geheimzuhalten, trug diesen Interessen Rechnung, ohne die Verteidigerrechte zu schmälern. Wird das Verfahren in seiner Gesamtheit betrachtet, war zur wirksamen Verteidigung weder die Kenntnis des Namens des V-Manns noch die Kenntnis seines Aussehens seitens des Verteidigers notwendig. Die kantonalen Behörden gewährleisteten dem Beschwerdeführer ein kontrollierbares und faires Gerichtsverfahren ..." In its judgment concerning the applicant's plea of nullity, the Federal Court dealt, inter alia, with the applicant's complaint about contradictions in the Jury Court's judgment. The Federal Court recalled in particular that the applicant had told "Markus" on the telephone on 13 January 1992 that he had previously undertaken matters with M. and that they were partners. At the meeting on 17 January 1992, the applicant had asked "Markus" whether he was interested in cocaine and offered to organise 1 kilo for him. On 30 January 1992, the applicant surprisingly offered "Markus" a further sample of heroin. As a result, the Court found that from the beginning the applicant had been determined to reach a deal with the undercover agent. The Court further recalled that on 13 January 1992, when "Markus" telephoned the applicant, it was clear that the drug deal would take place, and that the applicant would be the contact person for the deal. The Court noted the decision of the previous instance, according to which there had been no motivating influence (motivierendes Einwirken) on the applicant. B. Relevant domestic law According to S. 144 of the Code on the Criminal Procedure of the Canton of Berne (Gesetz über das Strafverfahren des Kantons Bern), when a witness is heard, his or her name, profession, age and residence must first be determined. SS. 268 et seq. of the Code concern the trial before the Jury Court. According to S. 272, the Jury Court will consist of three judges, and of eight members and one substitute member of the Jury. According to S. 293, the deliberations of the Jury Court will concern, inter alia, the offences, if any, which the accused has committed, the relevant legal provisions, whether or not there are extenuating or aggravating circumstances, and the costs of the proceedings (S. 293). In respect of the conduct of the court deliberations the Code refers to the general provisions according to which the President will determine the pertinent questions and will conduct the deliberations; no member may abstain from voting (SS. 213 et seq.). COMPLAINTS 1. The applicant complains of the use of an undercover agent which seriously breached his right to respect for his private life within the meaning of Article 8 of the Convention. He refers in particular to the Commission's opinion in the case of Lüdi v. Switzerland (Comm. Report 6.12.90, Eur. Court HR, Series A no. 238) and submits that the Court's judgment in the case overlooked certain points. The applicant claims that the use of an undercover agent had no legal basis, that it was not justified in the public interest, and that it was disproportionate. 2. Under Article 6 of the Convention the applicant complains that he only committed a criminal offence on account of the activities of the undercover agent. 3. The applicant raises various complaints under Article 6 paras. 1 and 3 (d) of the Convention about the manner in which the undercover agent was questioned before the Jury Court. a) The applicant complains that it was inappropriate and disproportionate to question the undercover agent covertly, as there were no concrete indications that he would be endangered if unmasked. b) In the applicant's opinion, it was unnecessary to conduct the trial in public. He submits that his legal representative filed a request for the public to be excluded. c) The applicant complains that, contrary to S. 144 of the Code on Criminal Procedure of the Canton of Berne, the Jury Court did not determine either the undercover agent's name, nor his personal circumstances. In fact, there was no legal basis for the covert questioning of a witness. d) The applicant also complains that he was unable himself to identify the undercover agent at the trial. e) The applicant submits that he was at least partly excluded from the proceedings, as he was not able fully to assess the witness, including visual impressions, body language etc. f) The applicant complains that at the trial the members of the Jury could gain no impression of the undercover agent, and the judges only a limited visual impression. However, according to recent studies, 80% of a person's decision is determined by nonverbal communications. THE LAW 1. The applicant complains of the use of an undercover agent which seriously breached his right to respect for his private life within the meaning of Article 8 (Art. 8) of the Convention. This provision states, insofar as relevant: "1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The Commission notes the Federal Court's judgment of 21 March 1995 on the applicant's public law appeal according to which the applicant had insufficiently raised this complaint, though it then considered that in any event the European Court had found no violation in respect of such a complaint in the case of Lüdi v. Switzerland (Eur. Court HR, jugment of 15 June 1992, Series A no. 238). The Commission need nevertheless not resolve whether the applicant has in this respect complied with the requirements under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies, as this part of the application is in any event inadmissible for the following reasons. The Commission recalls the Lüdi case where the Court found that a person who, upon being contacted, was prepared to sell a large amount of drugs, must have been aware from then on that he was engaged in a criminal act. Consequently, he was running the risk of encountering an undercover police officer whose task would in fact be to expose him. In that case, the Court concluded that the use of an undercover agent did not affect the applicant's private life within the meaning of Article 8 (Art. 8) of the Convention (Lüdi v. Switzerland judgment, loc. cit., p. 19, para. 40). The Commission considers that these findings also apply to the present case. As a result, there has been no interference with the applicant's right to respect for his private life within the meaning of Article 8 (Art. 8) of the Convention. This part of the application is, therefore, manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant raises various complaints under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention about the manner in which the undercover agent was questioned before the Jury Court. He submits that covert questioning was disproportionate, and that the public should have been excluded. He himself was unable to identify the undercover agent at the trial; in fact, he was not fully able to assess the witness. There was no legal basis for covert questioning which, indeed, breached S. 144 of the Code on Criminal Procedure of the Canton of Berne. The applicant also complains that at the trial members of the jury could not gain a personal impression of the undercover agent. Finally, he complains that he only committed the criminal offence on account of the activities of the undercover agent. Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention state, insofar as relevant: "1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ... ... 3. 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." As the requirements of Article 6 para. 3 (Art. 6-3) are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 para. 1 (Art. 6-1), the Commission will examine the complaints under Article 6 paras. 1 and 3 (d) (Art. 6-1+6-3-d) taken together (see Eur. Court HR, Delta v. France judgment of 19 December 1990, Series A no. 191-A, p. 15, para. 34). The Commission recalls that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Convention organs' task is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 26). Moreover, the Convention does not preclude reliance, at the investigation stage, on sources such as anonymous informants. The subsequent use of their statements by the trial court to found a conviction is however capable of raising issues under the Convention (see Eur. Court HR, Windisch v. Austria judgment of 27 September 1990, Series A no. 186, p. 11, para. 30). Article 6 (Art. 6) of the Convention does not explicitly require the interests of witnesses called upon to testify to be taken into consideration. However, their life, liberty and security may be at stake. Such interests are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify (see Eur. Court HR, Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, No. 6, p. 470, para. 70). In the present case, both the Jury Court and the Court of Cassation of the Canton of Berne explained their decision not to disclose the identity of the undercover agent as they feared reprisals. The Federal Court in its decision of 21 March 1995 considered that the previous courts had correctly balanced the various interests at stake, in particular the applicant's rights of defence, the requirement of the publicity of the proceedings, the police interest in protecting its undercover agent, and the public interest in the effective combatting of serious narcotic crimes. In the Commission's opinion, the domestic authorities gave relevant and sufficient reasons for proceeding in the manner at issue. It is true that the maintenance of the anonymity of the undercover agent presented the defence with difficulties which criminal proceedings should not normally involve. Nevertheless, no violation of Article 6 para. 1 taken together with Article 6 para. 3 (d) (Art. 6-1+6-3-d) of the Convention can be found if it is established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities (see the Doorson v. the Netherlands judgment, loc. cit., p. 471, para. 72). In the present case, the applicant was confronted with the undercover agent, albeit masked, during the investigations. The latter identified the applicant as the person with whom he had conducted the drug deal. The applicant and his lawyer were able to put questions to him. At this stage, the applicant did not contest that the person in question was the undercover agent "Markus". At the trial, the undercover agent sat in a neighbouring room. While the applicant and his lawyer were not able to see him, they heard him over a loudspeaker, and were able to put questions to him. Before the questioning took place, a high standing civil servant and the investigating judge confirmed that the person in question was indeed "Markus". Indeed, before the Commission the applicant has not claimed that the person in the neighbouring room was not the undercover agent with whom he undertook the drug deal. While it is true that the members of the jury were unable to see the undercover agent in the neighbouring room, the judges themselves could. Moreover, as the Federal Court found in its decision of 21 March 1995 in respect of the applicant's public law appeals, the members of the jury were able to identify the witness by comparing the voice at the trial with that heard on the tapes of the monitored telephone conversations. In view thereof, the present case falls to be distinguished from that of Lüdi v. Switzerland (Eur. Court HR, judgment of 15 June 1992, Series A no. 238, p. 21, para. 49). It also differs from the cases of Kostovski and Van Mechelen and others v. the Netherlands (see Eur. Court HR, judgments of 20 November 1989 and 23 April 1997, Series A no. 166, and Reports 1997-III, No. 36). The Commission also notes the Federal Court's decision of 21 March 1995 in respect of the applicant's public law appeals, according to which the procedure employed when questioning the undercover agent did not breach domestic law, in particular S. 144 of the Code of Criminal Procedure of the Canton of Berne. In the Commission's opinion, the procedure followed by the judicial authorities in obtaining evidence from the undercover agent must be considered sufficient to have enabled the defence to challenge the incriminating evidence. Nevertheless, even where such counterbalancing procedures are found sufficient to compensate for the handicaps under which the defence is labouring, a conviction should not be based either solely or to a decisive extent on anonymous statements (see Eur. Court HR, Doorson v. the Netherlands judgment, loc. cit., p. 472, para. 76). In the present case, however, the Jury Court, when reaching its conclusions in its judgment of 19 November 1993, also relied on statements of other police officers, and in particular on the monitored telephone conversations with the applicant. On the whole, the Commission does not find that the criminal proceedings in which the applicant was involved were unfairly conducted. Insofar as the applicant complains under Article 6 (Art. 6) of the Convention that he only committed the criminal offence on account of the activities of the undercover agent, the Commission recalls the judgment of the Federal Court of 21 March 1995 on the applicant's plea of nullity according to which, when the undercover agent had telephoned the applicant, it was clear that the drug deal would take place; that the applicant would be the contact person herefor; and that there had been no motivating influence on the applicant. It follows that the remainder of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION INADMISSIBLE. M.F. BUQUICCHIO M.P. PELLONPÄÄ Secretary President to the First Chamber of the First Chamber
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