AS TO THE ADMISSIBILITY OF
Application No. 12505/86
by Günter Hubert WISCHNEWSKI
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 11 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
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 28 October 1986
by Günter Hubert Wischnewski against the Federal Republic of Germany
and registered on 29 October 1986 under file No. 12505/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, which do not appear to be in dispute
between the parties, may be summarised as follows:
The applicant, born in 1947, is a German national. When
lodging his application he was detained at Duisburg prison. Before
the Commission he is represented by Prof. T. Vogler, a law professor
at Giessen.
In November 1983 the applicant and his wife were divorced.
The applicant's wife was granted the right to custody over their son M
and a right to maintenance. In December 1983 criminal proceedings
were instituted against the applicant on the suspicion of attempted
instigation to murder (versuchte Anstiftung zum Mord) of his divorced
wife.
The applicant was in detention on remand from 15 December 1983
until 10 February 1984.
The Mönchengladbach Regional Court (Landgericht) held trial
against the applicant on 7, 9 and 12 August 1985. The applicant was
assisted by a lawyer.
On 12 August 1985 the Regional Court convicted the applicant
of attempted instigation to murder, and sentenced him to three years'
imprisonment.
The Court found in particular that in October 1983 the
applicant had started to tell the witness V, with whom he co-operated
in business matters, about his financial problems as regards his
divorced wife and about how to get rid of her. At the end of October
1983 he offered V 7,000 DM for the murder of his divorced wife. V pro
forma declared his consent. The applicant showed V the house where
his wife was living and photographs of her. Furthermore they agreed
that she should be shot. On 2 December 1983 the applicant paid V
2,000 DM in order to buy a weapon. On 3 December 1983 V bought an
air-pistol with telescopic sight. The next day he showed it to the
applicant who did not notice that it was only an air-pistol. On
5 December 1983 the applicant telephoned V who, in the presence of his
fiancée, the witness J, secretly recorded the telephone conversation
of about 20 minutes with a cassette recorder. In the course of the
recorded conversation the applicant negotiated about the amount of
money to be paid in advance in order to enable V to "disappear"
immediately after having committed the murder. The applicant and V
met again, V received a further 500 DM. V then exchanged the
air-pistol in the store for other goods. Afterwards J informed the
applicant that the telephone conversation of 5 December had been
recorded and that V never intended to murder the applicant's wife. On
12 December 1983 V and J happended to meet the applicant together with
his fiancée P. The applicant requested V to sign promissory bonds of
about 6,000 DM with regard to earlier loans. When V refused, the
applicant requested V's car keys as security. This led to a fight
between the applicant, V and J. Shortly afterwards the applicant and P
left. Later V and J found the tyres of V's car pierced. The same
evening V went to the police, reported the attempted instigation and
handed over the cassette with the recorded telephone conversation.
The Regional Court based its finding on statements by the
applicant, and on the evidence given by the witness V, the applicant's
divorced wife, P, J and two further witnesses, whose role and evidence
in the case are not indicated in the judgment, as well as on the tape
recording of the telephone conversation by V, which had been played
back during the trial.
The applicant stated that he had only talked with V about his
financial problems as regards his wife, that V had himself offered to
murder the applicant's wife and threatened him to tell her that the
applicant had attempted to induce him to commit the crime and that, in
particular, the tape recording was manipulated.
The Court found, however, that the applicant's allegations
were disproved, with the degree of certainty necessary for conviction,
by the evidence of the witness V in connection with the tape recording
and the further evidence ("Diese Einlassung des Angeklagten ist mit der
für seine Verurteilung erforderlichen Sicherheit durch die Aussage des
Zeugen V... in Verbindung mit der ... Tonbandaufnahme und dem übrigen
Beweisergebnis widerlegt"). Having regard to his previous convictions,
the Court observed that V was not the "ideal" witness. It
nevertheless found his testimony credible and convincing. V had
stated the main facts without contradictions. His testimony was
decisively supported by the contents of the recorded telephone
conversation with the applicant. ("Die Aussage den Zeugen V... wird
entscheidend gestützt durch den Inhalt des von ihm aufgenommenen
Telefongespräches mit dem Angeklagten".)
The applicant's objection that the tape recording had been
manipulated and composed of various other conversations was considered
to be refuted by the evidence of the witnesses V and J as well as by
an expert opinion of the Federal Office of Criminal Investigations
(Bundeskriminalamt). The Office had examined the cassette and found
that, at the beginning of the telephone call, the recording had been
taped over and that there were for sixty seconds sounds of cracking,
but that there were no signs of manipulation. The Office were unable
to say whether professional electronic equipment could be used in such
a way as to combine a conversation with absolutely identical structure
of intonation. The Court considered that it was very unlikely that V
could have done so.
As to the applicant's submission that he resisted V's offer
the Court referred to extensive parts of the recorded conversation and
concluded that the applicant at the time of the conversation had
insisted on his plan to have his divorced wife murdered by V.
The applicant lodged an appeal on points of law (Revision)
with the Federal Court of Justice (Bundesgerichtshof) submitting inter
alia that, as it was unlawful, the secret recording of a conversation
could not be used as evidence. He referred, in this respect, to S.
201 of the German Penal Code (Strafgesetzbuch) according to which a
person who, without authority, records the words of somebody else,
which were not spoken in public, or who uses such a recording, or who
makes such a recording available to a third person, shall be punished
with imprisonment for up to three years or a fine.
The Federal Attorney General, in his observations of 25
February 1986 on the appeal, considered that the tape recording could
be used as evidence against the applicant. The legitimate interest,
that no use is made of a secret tape recording by a third person, was
superseded where the prevailing general interests so required.
Prevailing general interests were in particular the maintencance of an
efficient criminal justice and an efficient investigation of serious
criminal offences such as offences concerning life and limb.
On 2 April 1986 the Federal Court of Justice dismissed the
applicant's appeal on points of law on the ground that the examination
of the appeal had not disclosed any errors of law.
On 25 April 1986 the applicant lodged a constitutional
complaint (Verfassungsbeschwerde) with the Federal Constitutional
Court (Bundesverfassungsgericht). The applicant invoked the right to
free development of his personality under Article 2 para. 1 of the
Basic Law (Grundgesetz). He submitted in particular that the general
interest of prosecution did not outweigh his right to secrecy of
conversation as guaranteed by the right to free development of his
personality.
On 9 June 1986 the Federal Constitutional Court refused to
admit the constitutional complaint on the ground that it offered no
prospect of success. The Court, having regard to its established
jurisprudence, found that the taking of evidence from V's tape
recording was justified under constitutional law. The attempted
instigation to murder constituted a serious criminal offence. The use
of the tape as evidence could also not be objected to as being
disproportionate.
COMPLAINTS
1. The applicant complains under Article 6 paras. 1 and 2 of the
Convention that the taking of evidence from the secret tape recording
violated his right to a fair hearing. He submits in particular that
the secret recording by V was not necessary in order to avert any
danger. The secret recording of telephone conversations by State
authorities would, under the relevant provisions of the German Code of
Criminal Procedure (Strafprozessordnung), only be lawful in cases of a
particularly serious criminal offence, if ordered or confirmed by a
judicial authority. Furthermore attempted instigation was, in various
countries, not punishable at all. The applicant considers that,
though the tape recording was not the sole evidence at the trial, the
Regional Court, in its judgment, made it clear that it was the
decisive one without which the applicant would not have been
convicted.
2. The applicant complains under Article 8 para. 1 of the
Convention that the use of the secret recording of the telephone
conversation violated his right to respect for his private life and
correspondence. He considers that the German authorities interfered
with these rights in that they made use of the unlawful private tape
recording.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 October 1986 and
registered on 29 October 1986.
On 7 December 1987 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on its admissibility and merits.
The Government's observations dated 1 March 1988 were received
on 7 March 1988. The applicant's submissions in reply of 8 April 1988
were received on 12 April 1988.
On 6 July 1988 the Commission decided to adjourn the further
examination of the case pending the judgment of the European Court of
Human Rights in the Schenk case. The judgment was delivered on
12 July 1988.
SUBMISSIONS OF THE PARTIES
A. The Government
1. Incompatibility ratione personae
The Government submit that the applicant's complaint
under Article 8 of the Convention about the secret tape recording is
incompatible ratione personae with the Convention on the ground that
the tape recording was secretly effected by a private individual
without knowledge of German authorities. The responsibility of the
Federal Republic of Germany is, therefore, not engaged.
2. Exhaustion of domestic remedies
The Government consider that the applicant did not exhaust the
remedies available to him under German law in respect of his complaint
under Article 8 of the Convention. The applicant should have laid a
complaint (Strafantrag) against the person responsible for the
recording for having committed an offence under S. 201 para. 1 of the
German Penal Code. Under S. 205 para. 1 of the Penal Code such a
complaint would have been a pre-condition for criminal proceedings
against V. According to S. 205 para. 1 offences under S. 201 para. 1
of the Penal Code are only prosecuted upon complaint. Under S. 77
para. 1 and S. 77 (b) the victim of the offence in question is
entitled to lay the complaint within three months from the date when
he knows about the offence and the person having committed the offence.
3. As to Article 6 para. 1 of the Convention
The Government find that the reasoning of the Commission
in the Schenk case (Report 14.5.1986 para. 59), that the
Convention contains no express or implied requirement that evidence
obtained unlawfully under domestic law should necessarily be ruled
inadmissible, applies a fortiori to the present case.
They maintain that the secret tape recording of the
applicant's telephone conversation was justified under S. 34 of the
Penal Code and, therefore, lawful under German law. S. 34 provides
that any person committing an offence in order to avert an immediate
and otherwise unavoidable danger to life, limb, liberty, honour,
property or another protected interest of himself or another person
does not act unlawfully if, considering all conflicting interests, in
particular the interests concerned and the degree of danger
threatening them, the interest protected by him significantly
outweighs the interest harmed. This only applies if the act is an
appropriate means of averting the danger. In the present case V
secretly effected the tape recording in order to prevent the applicant
from killing his wife. The recording of the telephone conversation
was an appropriate and the only means to avert this danger and
have the applicant convicted. The public interest in the prevention
of murder considerably outweighs the applicant's private interest in
having his conspiracy kept secret.
Furthermore the Government submit that the proper administration
of justice and effective suppression of crime are taken into account by
the Convention, in particular Articles 2 para. 2 (b), 5 para. 1 (c),
8 para. 2, 10 para. 2 and Article 11. The Convention should not,
therefore, be interpreted so as to provide a loop-hole for criminals to
avoid prosecution.
Moreover the Government consider that there are no other
indications that the criminal proceedings were unfair. The Regional
Court did not exclusively proceed from the secret tape recording but
primarily from the evidence of the witness V. It carefully considered
V's credibility and had the authenticity of the tape recording
examined in an expert opinion.
The Government conclude that the applicant's complaint under
Article 6 para. 1 of the Convention is manifestly ill-founded.
4. As to Article 6 para. 2 of the Convention
The Government consider that the use of a secret tape
recording in criminal proceedings does not raise an issue under
Article 6 para. 2 of the Convention, but is exclusively to be examined
under Article 6 para. 1 of the Convention.
5. As to Article 8 of the Convention
The Government submit that the use of a secret tape recording
only falls to be considered under Article 6 para. 1 of the Convention,
which is the lex specialis as regards the fairness of criminal
proceedings. They contend that the complaint in respect of Article 8
para. 1 of the Convention is incompatible ratione materiae with the
provisions of the Convention.
However, even assuming an interference with the right to
respect for the appicant's private life, the use of the secret tape
recording was justified under Article 8 para. 2 of the Convention.
The measure was in accordance with S. 244 para. 2 of the Code
of Criminal Procedure which provides that the court, in order to
establish the truth, has, ex officio, to extend the taking of evidence
to all facts and evidence relevant for the decision.
The measure was necessary in a democratic society for the
"prevention of disorder". In this respect, the same considerations as
under Article 6 para. 1 apply. The attempted instigation to murder of
which the applicant was convicted could only be properly sanctioned
by use of the secret tape recording. The use was also proportionate,
as the public interest in the punishment of an attempted instigation
to murder outweighs by far the interest of the criminal in the secrecy
of a telephone call disclosing his criminal intentions.
6. Conclusion
The Government request the Commission to declare the
application in respect of the applicant's complaints under Article 8
of the Convention inadmissible for non-exhaustion of domestic remedies
and as being incompatible ratione personae with the provisions of the
Convention, or, alternatively, - as well as the remainder of the
application - as being manifestly ill-founded.
B. The applicant
The applicant submits that the secret tape recording of his
telephone conversation cannot be justified under S. 34 of the Penal
Code. He refers, in this respect, to a decision of the Federal
Court of Justice of 9 April 1986 (3 StR 551/85 - BGHSt 35 p. 39),
according to which the secret tape recording of a non-public
conversation of a person charged with a criminal offence is - except
for the restrictions on the secrecy of telecommunications provided for
by law - generally unlawful and entails that the tape recording cannot
be used as evidence. Only exceptionally a secret tape recording could
be justified, if it is necessary to avert an immediate danger from an
unidentified speaker. However, it would not be sufficient that such a
tape recording constitutes a supplementary means of evidence against a
person already known.
If, in the present case, there had been any danger, it could
have been averted by disclosing the alleged attempt to incite somebody
to murder. A secret tape recording was not necessary. Furthermore,
the interference with the applicant's right to respect for his private
life cannot be balanced with the alleged attempted instigation to
murder, which is at the lowest level of criminal responsibility and
not even punishable in other countries.
Moreover, the applicant strongly denies the authenticity of
the tape recording and alleges that the witness V manipulated the tape
recording in order to blackmail him.
The applicant considers that the Mönchengladbach Regional
Court violated his right to a fair hearing, in particular the
principle "ex iniuria ius non oritur", when it used the unlawful
secret tape recording of his own previous statements as evidence to
find him guilty.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of
the Convention that the criminal proceedings against him were unfair
on the ground that the Regional Court took evidence from an unlawful
and manipulated tape recording. Article 6 para. 1 (Art. 6-1) of the
Convention provides, inter alia, that "in the determination of any
criminal charge against him, everyone is entitled to a fair ...
hearing".
The Government submit, in particular, that the Convention
contains no express or implied requirement that evidence obtained
unlawfully under domestic law should necessarily be ruled
inadmissible. In the present case, the secret recording of the
applicant's telephone conversation was justified under Section 34 of
the Penal Code and, therefore, lawful under German law. Its
authenticity was examined by an expert.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45; No. 10000/82, Dec. 4.7.83, D.R. 33 pp.
247, 255/256). It follows that the Commission cannot examine whether
the tape recording of the applicant's telephone conversation with V
was manipulated or not.
While Article 6 para. 1 (Art. 6-1) of the Convention
guarantees, inter alia, that "in the determination of any criminal
charge against him, everyone is entitled to a fair ... hearing", it
does not lay down rules as to the evidence as such, and, in
particular, as to its admissibility, these questions being essentially
dependent on domestic legislation. In particular, none of the
Convention's provisions expressly requires that evidence obtained
illegally under national law should not be admitted. The Convention
organs therefore cannot exclude as a matter of principle and in the
abstract that evidence obtained unlawfully under domestic law may be
admissible, but must ascertain in the specific case whether, having
regard to its particular circumstances of the case in question, the
trial - taken as a whole - was fair within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention (Eur. Court H.R., Schenk
judgment of 12 July 1988, Series A no. 140, paras. 46-49).
In the present case, the Commission notes first that the
Mönchengladbach Regional Court did not, in its judgment of 12 August
1985, expressly deal with the question whether or not the tape
recording was admissible evidence, whereas the fact that the recording
was effected without the applicant's knowledge and consent appears
from the Court's statement of facts. The Federal Attorney General, in
the appeal proceedings before the Federal Court of Justice, and the
Federal Constitutional Court found that the secretly effected tape
recording could lawfully be used as evidence against the applicant on
the ground that the proceedings concerned a serious criminal offence.
The German courts did not deal with the question whether or not V's
secret tape recording was justified under German law. The Commission
finds that it is not called upon to decide this issue on the ground
that, in any event, the approach of the German courts does not, as
such, render the criminal proceedings against the applicant unfair.
Furthermore, the Commission finds no evidence to indicate that
the applicant, who was represented by a defence counsel, could not
properly defend himself. The Commission notes in particular that the
applicant had the opportunity to contest the authenticity of the tape
recording and that the Regional Court took, in this respect, evidence
from an expert. Moreover, V was summoned and heard as a witness at
the trial as to the contents of the taped telephone conversation.
As regards the assessment of evidence the Commission considers
that the Mönchengladbach Regional Court did not base its decision
exclusively on the tape recording of the telephone conversation
between the applicant and V. It took evidence from several witnesses
including V and his fiancée J. Moreover, the Regional Court, in its
judgment, referred in particular to the testimony of the witness V as
the main evidence of the applicant's guilt. The evidence obtained
from the tape recording was considered to be the decisive support for
V's testimony. The Regional Court also had regard to the fact that
the recorded telephone conversation was confirmed by V and his fiancée
J and that the authenticity of the recording was established by an
expert opinion.
The Commission is, therefore, of the opinion that, in the
specific circumstances of the instant case, the taking of evidence
from a secret tape recording was not contrary to the guarantee of a
fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
It follows that this part of the application must be rejected
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also complains under Article 8 (Art. 8) of the
Convention that the taking of evidence by the Regional Court from the
secretly effected tape recording of a telephone conversation amounts
to a violation of his right to respect for his private life and
correspondence.
Article 8 para. 1 (Art. 8-1) of the Convention guarantees to
everyone the right to respect for his private life and correspondence.
These notions also cover telephone conversations (Eur. Court H.R.,
Klass and others judgment of 6 September 1978, Series A no. 28 p. 21
para. 41; Malone judgment of 2 August 1984, Series A no. 82 p. 30
para. 64).
However, the Commission notes that, in the present case, State
authorities were not involved in the secret tape recording of the
applicant's telephone conversation with V. The Commission finds that
the question of the use made of the secretly effected tape recording
during the trial has already been examined under Article 6 para. 1
(Art. 6-1) of the Convention and does not raise a separate issue under
Article 8 (Art. 8) of the Convention. It is, therefore, not necessary to
examine the present case under Article 8 (Art. 8) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)