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AS TO THE ADMISSIBILITY OF

Application No. 21365/93

by Josua ARTEAGA-SIERRA

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 9 December 1992

by Josua ARTEAGA-SIERRA against Germany and registered on

10 February 1993 under file No. 21365/93;

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 is a Columbian citizen born in 1951 and presently

detained in Straubing, Germany. The applicant is represented by

Mr. H. Wächtler, a lawyer practising in Munich.

It follows from his statements and the documents submitted that

on 28 October 1991 the applicant was convicted by the Munich Regional

Court (Landgericht) of drug trafficking and sentenced to ten years'

imprisonment.

According to the findings of the court, the applicant came to

Munich in April 1990 in order to assist one A.CH. who was prosecuted

against in separate proceedings, in drug dealings. A.CH. and another

co-accused, likewise prosecuted against in separate proceedings, one

N.G., had contacts with a police undercover agent called Uli who

pretended to be interested in buying a large quantity of cocaine. A

police informer called Peter was also involved in the negotiations and

had a personal and economic interest in the cocaine deal.

The applicant subsequently travelled to Columbia where he got to

know one S.H. who was willing to deliver a large quantity of cocaine

to Munich. The applicant returned to Munich accompanied by S.H. and

entered into negotiations with Uli and Peter. An agreement was reached

and S.H. returned to Columbia while the applicant remained in Munich

in order to await the shipment of cocaine. On 4 June 1990 the

applicant informed Uli that the cocaine would arrive on the freighter

ship "Andez" which was expected to arrive in Bremen on 16 or

17 June 1990. On 10 June 1990 the applicant informed Uli that S.H. was

sending two travelling bags, each containing twenty kilos of cocaine.

These bags would be smuggled onto an aeroplane disguised as the luggage

of one of the passengers. This sale was meant by S.H. as a test in

order to see whether the buyers kept their promises.

On 15 June 1990 the applicant went to Munich airport to supervise

the arrival and receipt of the specially marked luggage containing the

cocaine by persons sent by the buyer Uli.

On 19 June 1990 the ship "Andez" arrived in Bremen and the police

found one hundred packages with a total of nearly one hundred kilos of

cocaine among its cargo.

On 20 June 1990 the applicant was arrested and confronted with

the cocaine which had been seized by the police. The applicant was

immediately charged with drug trafficking and tried to conceal his

identity pretending that his name was Ramirez.

The applicant had defended himself alleging that Peter had told

him at their first meeting that he was collaborating with the police.

The applicant therefore considered that his participation in the

cocaine trafficking was not punishable. The court considered this

allegation to be incredible and unproven. The court relied on the

evidence given by the undercover agent Uli who was heard as a witness.

The court also noted that N.G., when heard as a witness, had not

confirmed the applicant's allegations. This witness claimed himself

that Peter had asked him to collaborate with the police but that

according to him no such offer had been made to the applicant.

The informant Peter was not heard by the court because the

Bavarian Ministry of the Interior and State Security had refused to

reveal the present address of this informant on the ground that this

would put his life in danger. Therefore the court only heard a police

officer, who had interrogated Peter in relation to the events in

question.

The court noted that Peter was a dubious character with an

extensive criminal record. Nevertheless the court considered that in

the circumstances of the case it was unlikely that contrary to the

evidence given by Uli, the police undercover agent, the applicant had

been informed by Peter of the fact that the cocaine deal was in reality

a deal concluded with a police agent. The court noted in this context

that at his arrest the applicant tried to conceal his real identity

which would have been unnecessary if he had been aware that he was

involved in the police plot. The court also noted that the applicant

had neither before the police or during the first hearings before the

court alleged to have been aware of the fact that the buyer Uli was a

police undercover agent. Furthermore the court considered that it was

against any logic to assume that the police informer Peter had revealed

to the applicant his collaboration with the police. He did not know

the applicant at all and would have risked the applicant warning the

Columbian dealers.

The applicant lodged an appeal on points of law (Revision) which

was dismissed by the Federal Court (Bundesgerichtshof) on 27 May 1992.

The applicant submits that he did not lodge a constitutional

complaint as in view of the constitutional court's jurisprudence such

a complaint would not offer any prospects of success.

COMPLAINTS

The applicant submits that the police informer Peter was the key

figure in the negotiations between the police undercover agent and the

Columbian citizens, including himself, who were suspected to be drug

traffickers. Peter was the only one on the German side who could speak

Spanish. The applicant therefore considers that Peter should have been

heard as a witness in the trial against him and he should have been

given the possibility to put questions to this witness. As he did not

have this possibility, he considers that Articles 6 para. 1 and 3 (d)

were violated in his case.

THE LAW

The applicant complains that he did not receive a fair trial

because a certain police informer called Peter was not heard in his

case. He relies mainly on the following provisions of Article 6

(Art. 6) of the Convention:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a fair and

public hearing ... by an independent and impartial tribunal ...

...

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;

..."

The Commission first recalls that in accordance with Article 26

(Art. 26) of the Convention, it may not deal with an application unless

all domestic remedies have been exhausted. The applicant has failed

to lodge a constitutional complaint (Verfassungsbeschwerde) alleging

that it would not have offered any prospects of success.

This question can however be left undecided as even assuming that

domestic remedies were exhausted, the application has to be rejected

for the following reasons.

The admissibility of evidence is primarily a matter for

regulation by national law (see Eur. Court H.R., Schenk judgment of

12 July 1988, Series A no. 140, p. 29, para. 46). As a general rule

it is for the national courts to assess the evidence before them (see

Eur. Court H.R., Barberà, Messegué and Jabardo judgment of

6 December 1988, Series A no. 146, p. 31, para. 68).

The Commission's task therefore is to ascertain whether the

proceedings considered as a whole, including the way in which evidence

was taken, were fair (ibid.). It will consider the applicant's

complaint also having regard to the specific aspects of the right to

a fair trial as set out in Article 6 para. 3 (d) (Art. 6-3-d).

The Commission further recalls that in principle all the evidence

must be produced in the presence of the accused at a public hearing

with a view to adversarial argument (see the above-mentioned Barberà,

Messegué and Jabardo judgment of 6 December 1988, Series A no. 146,

p. 34 para. 78). Also, the accused has a right that witnesses for the

defence are heard by the trial court which has however, as was pointed

out above, the competence to decide whether or not evidence suggested

by the defence is at all relevant.

The Commission notes that in the present case an important amount

of cocaine was seized which, according to the finding of the domestic

trial court together with the evidence given in court by a police

undercover agent, Uli, and further statements of witnesses, proved that

the applicant was involved in the trafficking of these drugs.

The trial court also took into consideration the applicant's

allegation that he was involved in the police plot against the drug

traffickers. However, the trial court considered this allegation to

be contradicted by the evidence given by a police officer who had

questioned the police informer, Peter, but also by the applicant's own

behaviour at his arrest and subsequent to the arrest when he never

claimed to have been on the side of the police but rather tried to

conceal his identity in order to avoid being related to the drug

trafficking matter at all.

The Commission cannot, in these circumstances, find that the

trial court assessed the available evidence in an arbitrary manner nor

that the impossibility for the trial court to hear the police informer,

Peter, affected the trial proceedings in such a manner as to deprive

the applicant of his right to a fair hearing.

It follows that there is no appearance of a violation of

Article 6 (Art. 6) and the application has to be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

It follows that the application has to be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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ARTEAGA-SIERRA v. GERMANY

ARTEAGA-SIERRA v. GERMANY

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