Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22463/93

by René MÜLLER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 28 June 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

C. BÎRSAN

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 3 January 1993 by

René MÜLLER against Austria and registered on 17 August 1993 under file

No. 22463/93;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Swiss national, born in 1954, and currently

detained in Austria at the Karlau prison. Before the Commission he is

represented by Mr. M. Rath, a lawyer practising in Graz.

On 16 January 1992 the Vienna Regional Criminal Court

(Landesgericht für Strafsachen) convicted the applicant and five co-

accused, G.K., C.S., H.A., V.B. and T.M., under the Drug Offenses Act

(Suchtgiftgesetz) of having in April 1991, together with his

accomplices G.K., C.S. and V.B., and in June 1991, together with the

accomplice V.B., attempted to sell a large quantity of drugs in Graz

and Bregenz respectively. The Court sentenced the applicant to six and

half a years' imprisonment and to a fine of 1,4 million AS or 6 months'

imprisonment in default.

The Regional Court found that in December 1990 G.K., a dutch

national who knew drug suppliers in the Netherlands, had contacted the

applicant in Switzerland. They agreed that G.K. would procure drugs

in the Netherlands while the applicant would look for potential buyers.

The applicant, when looking for potential buyers, contacted V.B whom

he knew from previous drug transactions. V.B. informed him about

potential buyers in Graz. Subsequently, between 22 and 27 April 1991

negotiations between V.B., acting for these potential buyers, the

applicant, who financed the transaction, and G.K. and C.S., who

procured the drugs in the Netherlands, took place. It was agreed to

bring the drugs to Germany close to the Austrian border and to meet the

potential buyers in Graz on 28 April 1991. As the potential buyers

insisted that the drugs be brought to Graz the transaction did not take

place and the drugs were sent back to the Netherlands. After further

negotiations a new meeting in Graz was arranged for 30 April 1991. On

that day H.A. brought the drugs by car to Graz, where also G.K.and C.S.

were present. At the meeting with the potential buyers they were

arrested by the police. In June 1991 the applicant organised a further

drug transaction with potential buyers who V.B. had met in Bregenz.

He procured the drugs in Switzerland and hired T.M. as courier for the

transport. On 3 June 1991, when attempting to hand over the drugs to

the presumed buyers, the applicant, V.B. and T.M. were arrested.

In establishing these facts, the Regional Court relied on the

statements of the accused, given in the course of the pre-trial

investigations and at the trial, and also on a written police report

in regard to which police officer G.T. was heard by the court. The

Regional Court had also regard to a report drawn up by the Dutch

police.

At the trial the Regional Court rejected the applicant's request

to hear the police officers, including the Federal Minister for

Internal Affairs (Bundesminister für Inneres), who were responsible for

the measures of undercover investigation, the undercover agents and the

police informants for proving that the accused had been instigated by

the police authorities to commit the offences they were charged with.

The Regional Court found that the evidence requested was irrelevant to

the proceedings. It was apparent from the police reports and the

statements of witness police officer G.T. that the drug offences had

been discovered by means of undercover investigation. Furthermore, the

applicant, V.B., C.S. and G.K. were already engaged in drug trafficking

before V.B. put them in contact with presumed Austrian drug buyers.

All the accused - apart from T.M. and H.A. who only had acted as drug

couriers - and in particular the applicant had admitted this when

questioned by the police and the investigating judge in the course of

the pre-trial investigations. In such circumstances it could not be

said that their intention to engage in drug trafficking was merely a

result of measures of undercover investigation. In any event, even the

fact that someone had been incited to an offence by officials carrying

out investigations could not lead to exemption of punishment for these

offences.

On 20 May 1992 the applicant lodged a plea of nullity and an

appeal as regards the sentence against the Regional Court's judgment.

He complained that the Regional Court had refused to hear as witnesses

the persons responsible for the ordering of the undercover

investigations and the police informants. Their evidence would have

proven that the criminal offence had been committed on the instigation

of the Austrian police. He further submitted that the Regional Court

had failed to take mitigating circumstances into account, in particular

that the offence had been provoked by the Austrian authorities and that

he had made a complete confession which allowed for the discovery of

further drug trafficking.

On 16 September 1992 the Supreme Court rejected the plea of

nullity. The Supreme Court found that the Regional Court had acted

correctly when it refused the applicant's requests for taking of

further evidence. The requested evidence was irrelevant to the

proceedings as it had already been clarified at the trial that the

offences in question had been discovered by measures of undercover

investigation. Furthermore, the question to which extent these

measures had incited the accused to the commit the offences at issue

was of no importance for the proceedings as it did not concern any fact

of relevance for the finding of guilt. The offence of drug trafficking

is also committed if the potential buyer of the drugs cooperates with

the police.

On 21 December 1992 the Graz Court of Appeal dismissed the

applicant's appeal. The Court of Appeal found that the mitigating

circumstance of Section 34 para. 4 of the Penal Code (Strafgesetzbuch),

namely that the accused had been instigated to commit the offence by

a third person, did not apply to the applicant.

The Court of Appeal observed that measures of undercover

investigation were an indispensable means for fighting organised crime

as it enabled the police to accede to the men who pull the strings

(Hintermänner) in such an organisation. Nevertheless, the instigation

by police authorities to commit an offence made in the course of

undercover investigations would, if not being unlawful, at least be

considered as problematic. However, there is no place for such

hesitations, if a person who is already inclined to commit a certain

kind of criminal offences comes across a police informant. In the

present case, the applicant, according to his own statements, had

already been selling drugs before he committed the offences at issue.

In committing these offences he was only deluded as to the seriousness

of the intention of the potential drug buyers to conclude the drug

transactions. He therefore could not rely on the mitigating

circumstance of Section 34 para. 4 of the Penal Code. This decision

was served on the applicant on 11 March 1993.

COMPLAINTS

The applicant complains that he had been instigated by the

Austrian authorities by use of undercover agents to commit the offences

he had been convicted for. He further complains that the Regional

Court refused to hear the police informants and undercover agents on

this issue as witnesses at the trial. The applicant invokes Article

6 para. 1 and 3 (d) and Articles 7, 8 and 13 of the Convention.

THE LAW

1. The applicant complains that he had been instigated by the

Austrian authorities by use of undercover agents to commit the offences

he had been convicted for. He further complains that the Regional

Court refused to hear the police informants and undercover agents on

this issue as witnesses at the trial. He invokes Articles 6, 7, 8 and

13 (Art. 6, 7, 8, 13) of the Convention.

The Commission finds that these complaints fall to be examined

under Article 6 para. 1 and para. 3 (d) (Art. 6-1, 6-3-d) of the

Convention which, as far as relevant, reads as follows:

"(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."

The Commission recalls that in order to determine whether the aim

of Article 6 (Art. 6) - a fair trial - has been achieved, regard must

be had to the entirety of the domestic proceedings conducted in the

case (Eur. Court H.R., Imbroscia judgment of 24 November 1993, Series

A no. 275, p. 14, para. 38; Lüdi judgment of 15 June 1992, Series A no.

238, p. 20, para. 43).

a. As regards the applicant's submission that undercover agents had

been involved in the criminal investigations against him, the

Commission recalls 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 the prosecution authorities may consider it

necessary, in some circumstances, to rely on police informers and

undercover agents. 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). The fairness

of criminal proceedings may be 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 (see

Radermacher and Pferrer v. Germany, Comm. Report of 11 October 1990,

para. 75, unpublished).

In this respect the Commission observes that the Regional Court,

in its judgment of 16 January 1992, as well as the Supreme Court and

the Court of Appeal, in their respective judgments, found that the

applicant already dealt with drugs before the co-accused V.B. came into

contact with police informers and undercover agents. The Austrian

courts concluded that in such circumstances, namely when a person was

already prepared to commit offences of a certain kind, the acting of

an undercover agent could not be considered as undue incitement to

commit such offences.

Having regard to these findings of the Austrian courts the

Commission is satisfied that in the circumstances of the present case

there are no indications that the fairness of the proceedings at issue

was affected by the activities of undercover agents.

b. The applicant further submits that the Regional Court refused to

examine the police informants and undercover agents as witnesses at the

trial against him.

In this respect, the Commission recalls that as a general rule

it is for the national courts, and in particular the court of first

instance, to assess the evidence before them as well as the relevance

of the evidence which the accused seeks to adduce (Eur. Court H.R.,

Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A

no. 146, p. 31, para. 68). Article 6 para. 3 of the Convention does

not give the accused an unlimited right to have witnesses called

(No. 8417/78, Dec. 4.5.79, D.R. 15 p. 200). In particular a court is

justified in refusing to summon witnesses when it considers that their

statements could not be of any relevance to the case (No. 10486/83,

Dec. 9.10.86, D.R. 49 p. 86 at p. 102). Domestic courts may thus

exercise some discretion, provided that the Convention and particularly

the right to a fair hearing are respected in deciding whether the

hearing of a defence witness is likely to help to establish the truth

(No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).

In the present case, the Regional Court refused to take evidence

requested by the applicant as it found the proposed evidence irrelevant

to the case. In the course of the pre-trial investigation and the

trial the applicant, and also the co-accused, had admitted to have

committed the offences they have been charged with. The issue of the

requested evidence was whether they had been incited to do so by police

informants and undercover agents. The Regional Court found that this

question was of no relevance to the proceedings as, even assuming that

such incitement had occurred this would have had no effect for

establishing the guilt of the applicant.

Having regard to the above finding that the involvement of

undercover agents did not as such affect the fairness of the criminal

proceedings, and taking into account the particular circumstances of

the present case, the Commission finds that there is no appearance of

a violation of the applicant's rights under Article 6 para. 1 and

para. 3 (d) (Art. 6-1, 6-3-d)of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Insofar the applicant appears to complain that the involvement

of an undercover agent in the police investigations violated his right

to respect for private life as guaranteed by Article 8 (Art. 8) of the

Convention, the Commission recalls that the use of an undercover agent

in circumstances such as in the present case does not affect private

life within the meaning of Article 8 (Art. 8) of the Convention (see

Eur. Court H.R., Lüdi judgment of 15 June 1992, Series A no. 238, p.

19, para. 40; No. 10747/84, Dec. 7.10.85, unpublished).

Accordingly, the Commission finds that there is no appearance of

a violation of the applicant's rights under Article 8 (Art. 8) of the

Convention.

It follows that also this part of the application is 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) (L. ROZAKIS)

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MÜLLER v. AUSTRIA

MÜLLER v. AUSTRIA

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