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