Lexploria

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 went on a 'fishing expedition' for potential

dealers in counterfeit money in

demi-monde milieu without a concrete initial suspicion

against . However, it is indispensable

to proceed in such a way in regard to dangerous delinquency

which is difficult to clear up as it is the case with

delinquency involving counterfeit money ... Otherwise it

would not be possible to trace counterfeit money

transactions of the present kind. Up to the moment when

and 'Hans' entered into action in a concrete way, pretending

to be interested in buying counterfeit money,

applicant> had already developed numerous activities of his

own for a long time - had established

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 ohne

konkreten Anfangsverdacht gegenüber in dessen Halbweltmilieu

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 und 'Hans' konkret als

vorgebliche Falschgeldabnehmer in Aktion traten, hatte der

Angeklagte schon über einen langen Zeitraum zahlreiche

Eigenaktivitäten entwickelt - die Verbindung hergestellt

- und damit einen konkreten Verdacht gesetzt. Von einer

Anstiftung der Angeklagten durch V-Leute des Bayerischen

Landeskriminalamts kann daher hier keine Rede sein."

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 " ("Falschgeld-

anbieter aus dem Raum Aachen "). The second applicant had

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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RADERMACHER AND PFERRER v. GERMANY

RADERMACHER AND PFERRER v. GERMANY

LEXI