AS TO THE ADMISSIBILITY OF

                      Application No. 12505/86

                      by Günter Hubert WISCHNEWSKI

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 11 October 1988, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 28 October 1986

by Günter Hubert Wischnewski against the Federal Republic of Germany

and registered on 29 October 1986 under file No. 12505/86;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, which do not appear to be in dispute

between the parties, may be summarised as follows:

        The applicant, born in 1947, is a German national.  When

lodging his application he was detained at Duisburg prison.  Before

the Commission he is represented by Prof.  T. Vogler, a law professor

at Giessen.

        In November 1983 the applicant and his wife were divorced.

The applicant's wife was granted the right to custody over their son M

and a right to maintenance.  In December 1983 criminal proceedings

were instituted against the applicant on the suspicion of attempted

instigation to murder (versuchte Anstiftung zum Mord) of his divorced

wife.

        The applicant was in detention on remand from 15 December 1983

until 10 February 1984.

        The Mönchengladbach Regional Court (Landgericht) held trial

against the applicant on 7, 9 and 12 August 1985.  The applicant was

assisted by a lawyer.

        On 12 August 1985 the Regional Court convicted the applicant

of attempted instigation to murder, and sentenced him to three years'

imprisonment.

        The Court found in particular that in October 1983 the

applicant had started to tell the witness V, with whom he co-operated

in business matters, about his financial problems as regards his

divorced wife and about how to get rid of her.  At the end of October

1983 he offered V 7,000 DM for the murder of his divorced wife.  V pro

forma declared his consent.  The applicant showed V the house where

his wife was living and photographs of her.  Furthermore they agreed

that she should be shot.  On 2 December 1983 the applicant paid V

2,000 DM in order to buy a weapon.  On 3 December 1983 V bought an

air-pistol with telescopic sight.  The next day he showed it to the

applicant who did not notice that it was only an air-pistol.  On

5 December 1983 the applicant telephoned V who, in the presence of his

fiancée, the witness J, secretly recorded the telephone conversation

of about 20 minutes with a cassette recorder.  In the course of the

recorded conversation the applicant negotiated about the amount of

money to be paid in advance in order to enable V to "disappear"

immediately after having committed the murder.  The applicant and V

met again, V received a further 500 DM. V then exchanged the

air-pistol in the store for other goods.  Afterwards J informed the

applicant that the telephone conversation of 5 December had been

recorded and that V never intended to murder the applicant's wife.  On

12 December 1983 V and J happended to meet the applicant together with

his fiancée P.  The applicant requested V to sign promissory bonds of

about 6,000 DM with regard to earlier loans.  When V refused, the

applicant requested V's car keys as security.  This led to a fight

between the applicant, V and J.  Shortly afterwards the applicant and P

left.  Later V and J found the tyres of V's car pierced.  The same

evening V went to the police, reported the attempted instigation and

handed over the cassette with the recorded telephone conversation.

        The Regional Court based its finding on statements by the

applicant, and on the evidence given by the witness V, the applicant's

divorced wife, P, J and two further witnesses, whose role and evidence

in the case are not indicated in the judgment, as well as on the tape

recording of the telephone conversation by V, which had been played

back during the trial.

        The applicant stated that he had only talked with V about his

financial problems as regards his wife, that V had himself offered to

murder the applicant's wife and threatened him to tell her that the

applicant had attempted to induce him to commit the crime and that, in

particular, the tape recording was manipulated.

        The Court found, however, that the applicant's allegations

were disproved, with the degree of certainty necessary for conviction,

by the evidence of the witness V in connection with the tape recording

and the further evidence ("Diese Einlassung des Angeklagten ist mit der

für seine Verurteilung erforderlichen Sicherheit durch die Aussage des

Zeugen V... in Verbindung mit der ...  Tonbandaufnahme und dem übrigen

Beweisergebnis widerlegt").  Having regard to his previous convictions,

the Court observed that V was not the "ideal" witness.  It

nevertheless found his testimony credible and convincing.  V had

stated the main facts without contradictions.  His testimony was

decisively supported by the contents of the recorded telephone

conversation with the applicant.  ("Die Aussage den Zeugen V... wird

entscheidend gestützt durch den Inhalt des von ihm aufgenommenen

Telefongespräches mit dem Angeklagten".)

        The applicant's objection that the tape recording had been

manipulated and composed of various other conversations was considered

to be refuted by the evidence of the witnesses V and J as well as by

an expert opinion of the Federal Office of Criminal Investigations

(Bundeskriminalamt).  The Office had examined the cassette and found

that, at the beginning of the telephone call, the recording had been

taped over and that there were for sixty seconds sounds of cracking,

but that there were no signs of manipulation.  The Office were unable

to say whether professional electronic equipment could be used in such

a way as to combine a conversation with absolutely identical structure

of intonation.  The Court considered that it was very unlikely that V

could have done so.

        As to the applicant's submission that he resisted V's offer

the Court referred to extensive parts of the recorded conversation and

concluded that the applicant at the time of the conversation had

insisted on his plan to have his divorced wife murdered by V.

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

with the Federal Court of Justice (Bundesgerichtshof) submitting inter

alia that, as it was unlawful, the secret recording of a conversation

could not be used as evidence.  He referred, in this respect, to S.

201 of the German Penal Code (Strafgesetzbuch) according to which a

person who, without authority, records the words of somebody else,

which were not spoken in public, or who uses such a recording, or who

makes such a recording available to a third person, shall be punished

with imprisonment for up to three years or a fine.

        The Federal Attorney General, in his observations of 25

February 1986 on the appeal, considered that the tape recording could

be used as evidence against the applicant.  The legitimate interest,

that no use is made of a secret tape recording by a third person, was

superseded where the prevailing general interests so required.

Prevailing general interests were in particular the maintencance of an

efficient criminal justice and an efficient investigation of serious

criminal offences such as offences concerning life and limb.

        On 2 April 1986 the Federal Court of Justice dismissed the

applicant's appeal on points of law on the ground that the examination

of the appeal had not disclosed any errors of law.

        On 25 April 1986 the applicant lodged a constitutional

complaint (Verfassungsbeschwerde) with the Federal Constitutional

Court (Bundesverfassungsgericht).  The applicant invoked the right to

free development of his personality under Article 2 para. 1 of the

Basic Law (Grundgesetz).  He submitted in particular that the general

interest of prosecution did not outweigh his right to secrecy of

conversation as guaranteed by the right to free development of his

personality.

        On 9 June 1986 the Federal Constitutional Court refused to

admit the constitutional complaint on the ground that it offered no

prospect of success.  The Court, having regard to its established

jurisprudence, found that the taking of evidence from V's tape

recording was justified under constitutional law.  The attempted

instigation to murder constituted a serious criminal offence.  The use

of the tape as evidence could also not be objected to as being

disproportionate.

COMPLAINTS

1.      The applicant complains under Article 6 paras. 1 and 2 of the

Convention that the taking of evidence from the secret tape recording

violated his right to a fair hearing.  He submits in particular that

the secret recording by V was not necessary in order to avert any

danger.  The secret recording of telephone conversations by State

authorities would, under the relevant provisions of the German Code of

Criminal Procedure (Strafprozessordnung), only be lawful in cases of a

particularly serious criminal offence, if ordered or confirmed by a

judicial authority.  Furthermore attempted instigation was, in various

countries, not punishable at all.  The applicant considers that,

though the tape recording was not the sole evidence at the trial, the

Regional Court, in its judgment, made it clear that it was the

decisive one without which the applicant would not have been

convicted.

2.      The applicant complains under Article 8 para. 1 of the

Convention that the use of the secret recording of the telephone

conversation violated his right to respect for his private life and

correspondence.  He considers that the German authorities interfered

with these rights in that they made use of the unlawful private tape

recording.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 28 October 1986 and

registered on 29 October 1986.

        On 7 December 1987 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits.

        The Government's observations dated 1 March 1988 were received

on 7 March 1988.  The applicant's submissions in reply of 8 April 1988

were received on 12 April 1988.

        On 6 July 1988 the Commission decided to adjourn the further

examination of the case pending the judgment of the European Court of

Human Rights in the Schenk case.  The judgment was delivered on

12 July 1988.

SUBMISSIONS OF THE PARTIES

A.      The Government

1.      Incompatibility ratione personae

        The Government submit that the applicant's complaint

under Article 8 of the Convention about the secret tape recording is

incompatible ratione personae with the Convention on the ground that

the tape recording was secretly effected by a private individual

without knowledge of German authorities.  The responsibility of the

Federal Republic of Germany is, therefore, not engaged.

2.      Exhaustion of domestic remedies

        The Government consider that the applicant did not exhaust the

remedies available to him under German law in respect of his complaint

under Article 8 of the Convention.  The applicant should have laid a

complaint (Strafantrag) against the person responsible for the

recording for having committed an offence under S. 201 para. 1 of the

German Penal Code.  Under S. 205 para. 1 of the Penal Code such a

complaint would have been a pre-condition for criminal proceedings

against V.  According to S. 205 para. 1 offences under S. 201 para. 1

of the Penal Code are only prosecuted upon complaint.  Under S. 77

para. 1 and S. 77 (b) the victim of the offence in question is

entitled to lay the complaint within three months from the date when

he knows about the offence and the person having committed the offence.

3.      As to Article 6 para. 1 of the Convention

        The Government find that the reasoning of the Commission

in the Schenk case (Report 14.5.1986 para. 59), that the

Convention contains no express or implied requirement that evidence

obtained unlawfully under domestic law should necessarily be ruled

inadmissible, applies a fortiori to the present case.

        They maintain that the secret tape recording of the

applicant's telephone conversation was justified under S. 34 of the

Penal Code and, therefore, lawful under German law.  S. 34 provides

that any person committing an offence in order to avert an immediate

and otherwise unavoidable danger to life, limb, liberty, honour,

property or another protected interest of himself or another person

does not act unlawfully if, considering all conflicting interests, in

particular the interests concerned and the degree of danger

threatening them, the interest protected by him significantly

outweighs the interest harmed.  This only applies if the act is an

appropriate means of averting the danger.  In the present case V

secretly effected the tape recording in order to prevent the applicant

from killing his wife.  The recording of the telephone conversation

was an appropriate and the only means to avert this danger and

have the applicant convicted.  The public interest in the prevention

of murder considerably outweighs the applicant's private interest in

having his conspiracy kept secret.

        Furthermore the Government submit that the proper administration

of justice and effective suppression of crime are taken into account by

the Convention, in particular Articles 2 para. 2 (b), 5 para. 1 (c),

8 para. 2, 10 para. 2 and Article 11.  The Convention should not,

therefore, be interpreted so as to provide a loop-hole for criminals to

avoid prosecution.

        Moreover the Government consider that there are no other

indications that the criminal proceedings were unfair.  The Regional

Court did not exclusively proceed from the secret tape recording but

primarily from the evidence of the witness V.  It carefully considered

V's credibility and had the authenticity of the tape recording

examined in an expert opinion.

        The Government conclude that the applicant's complaint under

Article 6 para. 1 of the Convention is manifestly ill-founded.

4.      As to Article 6 para. 2 of the Convention

        The Government consider that the use of a secret tape

recording in criminal proceedings does not raise an issue under

Article 6 para. 2 of the Convention, but is exclusively to be examined

under Article 6 para. 1 of the Convention.

5.      As to Article 8 of the Convention

        The Government submit that the use of a secret tape recording

only falls to be considered under Article 6 para. 1 of the Convention,

which is the lex specialis as regards the fairness of criminal

proceedings.  They contend that the complaint in respect of Article 8

para. 1 of the Convention is incompatible ratione materiae with the

provisions of the Convention.

        However, even assuming an interference with the right to

respect for the appicant's private life, the use of the secret tape

recording was justified under Article 8 para. 2 of the Convention.

        The measure was in accordance with S. 244 para. 2 of the Code

of Criminal Procedure which provides that the court, in order to

establish the truth, has, ex officio, to extend the taking of evidence

to all facts and evidence relevant for the decision.

        The measure was necessary in a democratic society for the

"prevention of disorder".  In this respect, the same considerations as

under Article 6 para. 1 apply.  The attempted instigation to murder of

which the applicant was convicted could only be properly sanctioned

by use of the secret tape recording.  The use was also proportionate,

as the public interest in the punishment of an attempted instigation

to murder outweighs by far the interest of the criminal in the secrecy

of a telephone call disclosing his criminal intentions.

6.      Conclusion

        The Government request the Commission to declare the

application in respect of the applicant's complaints under Article 8

of the Convention inadmissible for non-exhaustion of domestic remedies

and as being incompatible ratione personae with the provisions of the

Convention, or, alternatively, - as well as the remainder of the

application - as being manifestly ill-founded.

B.      The applicant

        The applicant submits that the secret tape recording of his

telephone conversation cannot be justified under S. 34 of the Penal

Code.  He refers, in this respect, to a decision of the Federal

Court of Justice of 9 April 1986 (3 StR 551/85 - BGHSt 35 p. 39),

according to which the secret tape recording of a non-public

conversation of a person charged with a criminal offence is - except

for the restrictions on the secrecy of telecommunications provided for

by law - generally unlawful and entails that the tape recording cannot

be used as evidence.  Only exceptionally a secret tape recording could

be justified, if it is necessary to avert an immediate danger from an

unidentified speaker.  However, it would not be sufficient that such a

tape recording constitutes a supplementary means of evidence against a

person already known.

        If, in the present case, there had been any danger, it could

have been averted by disclosing the alleged attempt to incite somebody

to murder.  A secret tape recording was not necessary.  Furthermore,

the interference with the applicant's right to respect for his private

life cannot be balanced with the alleged attempted instigation to

murder, which is at the lowest level of criminal responsibility and

not even punishable in other countries.

        Moreover, the applicant strongly denies the authenticity of

the tape recording and alleges that the witness V manipulated the tape

recording in order to blackmail him.

        The applicant considers that the Mönchengladbach Regional

Court violated his right to a fair hearing, in particular the

principle "ex iniuria ius non oritur", when it used the unlawful

secret tape recording of his own previous statements as evidence to

find him guilty.

THE LAW

1.      The applicant complains under Article 6 para. 1 (Art. 6-1) of

the Convention that the criminal proceedings against him were unfair

on the ground that the Regional Court took evidence from an unlawful

and manipulated tape recording.  Article 6 para. 1 (Art. 6-1) of the

Convention provides, inter alia, that "in the determination of any

criminal charge against him, everyone is entitled to a fair ...

hearing".

        The Government submit, in particular, that the Convention

contains no express or implied requirement that evidence obtained

unlawfully under domestic law should necessarily be ruled

inadmissible.  In the present case, the secret recording of the

applicant's telephone conversation was justified under Section 34 of

the Penal Code and, therefore, lawful under German law.  Its

authenticity was examined by an expert.

         The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention.  In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention.  The Commission refers, on this point, to its constant

case-law (see e.g.  No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45; No. 10000/82, Dec. 4.7.83, D.R. 33 pp.

247, 255/256).  It follows that the Commission cannot examine whether

the tape recording of the applicant's telephone conversation with V

was manipulated or not.

        While Article 6 para. 1 (Art. 6-1) of the Convention

guarantees, inter alia, that "in the determination of any criminal

charge against him, everyone is entitled to a fair ... hearing", it

does not lay down rules as to the evidence as such, and, in

particular, as to its admissibility, these questions being essentially

dependent on domestic legislation.  In particular, none of the

Convention's provisions expressly requires that evidence obtained

illegally under national law should not be admitted.  The Convention

organs therefore cannot exclude as a matter of principle and in the

abstract that evidence obtained unlawfully under domestic law may be

admissible, but must ascertain in the specific case whether, having

regard to its particular circumstances of the case in question, the

trial - taken as a whole - was fair within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention (Eur.  Court H.R., Schenk

judgment of 12 July 1988, Series A no. 140, paras. 46-49).

        In the present case, the Commission notes first that the

Mönchengladbach Regional Court did not, in its judgment of 12 August

1985, expressly deal with the question whether or not the tape

recording was admissible evidence, whereas the fact that the recording

was effected without the applicant's knowledge and consent appears

from the Court's statement of facts.  The Federal Attorney General, in

the appeal proceedings before the Federal Court of Justice, and the

Federal Constitutional Court found that the secretly effected tape

recording could lawfully be used as evidence against the applicant on

the ground that the proceedings concerned a serious criminal offence.

The German courts did not deal with the question whether or not V's

secret tape recording was justified under German law.  The Commission

finds that it is not called upon to decide this issue on the ground

that, in any event, the approach of the German courts does not, as

such, render the criminal proceedings against the applicant unfair.

        Furthermore, the Commission finds no evidence to indicate that

the applicant, who was represented by a defence counsel, could not

properly defend himself.  The Commission notes in particular that the

applicant had the opportunity to contest the authenticity of the tape

recording and that the Regional Court took, in this respect, evidence

from an expert.  Moreover, V was summoned and heard as a witness at

the trial as to the contents of the taped telephone conversation.

        As regards the assessment of evidence the Commission considers

that the Mönchengladbach Regional Court did not base its decision

exclusively on the tape recording of the telephone conversation

between the applicant and V.  It took evidence from several witnesses

including V and his fiancée J.  Moreover, the Regional Court, in its

judgment, referred in particular to the testimony of the witness V as

the main evidence of the applicant's guilt.  The evidence obtained

from the tape recording was considered to be the decisive support for

V's testimony.  The Regional Court also had regard to the fact that

the recorded telephone conversation was confirmed by V and his fiancée

J and that the authenticity of the recording was established by an

expert opinion.

        The Commission is, therefore, of the opinion that, in the

specific circumstances of the instant case, the taking of evidence

from a secret tape recording was not contrary to the guarantee of a

fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

        It follows that this part of the application must be rejected

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

(Art. 27-2) of the Convention.

2.      The applicant also complains under Article 8 (Art. 8) of the

Convention that the taking of evidence by the Regional Court from the

secretly effected tape recording of a telephone conversation amounts

to a violation of his right to respect for his private life and

correspondence.

        Article 8 para. 1 (Art. 8-1) of the Convention guarantees to

everyone the right to respect for his private life and correspondence.

These notions also cover telephone conversations (Eur.  Court H.R.,

Klass and others judgment of 6 September 1978, Series A no. 28 p. 21

para. 41; Malone judgment of 2 August 1984, Series A no. 82 p. 30

para. 64).

        However, the Commission notes that, in the present case, State

authorities were not involved in the secret tape recording of the

applicant's telephone conversation with V.  The Commission finds that

the question of the use made of the secretly effected tape recording

during the trial has already been examined under Article 6 para. 1

(Art. 6-1) of the Convention and does not raise a separate issue under

Article 8 (Art. 8) of the Convention.  It is, therefore, not necessary to

examine the present case under Article 8 (Art. 8) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

     (H.C. KRÜGER)                               (C.A. NØRGAARD)