Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12127/86

by J.A.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 15 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

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 2 April 1986

by J.A. against the Federal Republic of Germany and registered

on 7 April 1986 under file N° 12127/86;

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&S

The applicant is a German citizen, born in 1953 and presently

serving life imprisonment. He is represented by Mr. G. Strade, a

lawyer in Hamburg.

On 9 August 1984 the applicant was convicted by the

Hamburg Regional Court (Landgericht) of murder and sentenced to life

imprisonment. According to the findings of the court the applicant

and an Italian accomplice had on 17 November 1982 shot and robbed a

business man to whom they used to sell stolen videos. Being on the run

the two were arrested on 16 December 1982 in Italy on the suspicion of

dealing with heroin. The revolver with which the murder was

committed was found in their possession. They were locked in a cell

together with an Italian undercover agent who pretended also to have

been arrested because he was in possession of heroin. Not knowing

that the undercover agent understood German the applicant spoke of the

murder to his accomplice.

On 23 December 1982 the applicant had confessed the crime

before the Italian police and two German police officers. He

eventually revoked the confession when he was heard another time by an

Italian investigating judge in April 1983.

At his trial before the Hamburg Regional Court the applicant

likewise denied having participated in the murder. He alleged that

his Italian friend had committed the murder alone. Subsequently, he

had obliged him to flee with him since otherwise he would be shot

likewise. After their arrest the Italian friend persuaded him to

confess to the crime. He accepted to do so as he suffered from cancer

and thought that he had not much time left to live. Also he was

rendered indifferent by the anti-pain drugs he had to take.

The trial Court considered that the applicant's allegations

made at the trial were inconsistent and contradictory and not

corroborated by other evidence. The Court pointed out inter alia that

in his confession the applicant gave a detailed description of the

crime. All details stated by him were corroborated by the

circumstances of the case. On the contrary the subsequent allegation

incriminating the Italian friend to be the sole author of the crime

was contradictory and untrustworthy. If he had made the confession

under the influence of drugs it would have been logical that he

revoked these declarations as soon as the effect of the drugs

decreased. However, he repeated his confession on three occasions,

once before a public prosecutor and once before the Italian

investigating judge. On the latter occasion he was confronted with

his accomplice and maintained that they had committed the crime

together.

Furthermore the Court took into consideration that according

to the statements of the two German police officers who attended the

interrogation on 23 December 1982 the applicant had not at all been

indifferent. Rather he first denied being involved in the matter and

resigned to a detailed confession only after several hours of

interrogation. He said he was relieved by his confession and both

witnesses were absolutely convinced by his statements.

The Court further took into account that the applicant and his

Italian accomplice were friends, had made shooting exercises together

and robbed a bank. In these circumstances it was likely that they

also planned the murder together. On the other hand it was unlikely

that a person fatally ill deliberately accepted to spend the rest of

his life in prison by confessing to a crime he had not committed.

Finally the Court stated that the applicant's allegations were

not confirmed by the witnesses he had named. The Italian undercover

agent did not confirm that the applicant's friend told him that he had

shot the business man. On the contrary he witnessed that the

applicant said to his friend: "we have shot someone and now we are

in the soup".

The applicant's appeal (Revision) was rejected by the Federal

Court (Bundesgerichtshof) on 9 August 1984 as being unfounded.

Without stating further reasons the Court referred to Section 349(2)

of the Code on Criminal Procedure (StPO).

The applicant's constitutional complaint was rejected on

17 September 1985 by a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) as offering no

prospects of success.

It is stated in the decision that the judgment complained of

did not reveal any arbitrariness constituting a violation of

constitutional law. In particular the assessment by the trial court

of the evidence was not arbitrary. It is true, so the Constitutional

Court pointed out, that Section 136 (a) of the Code on Criminal

Procedure (StPO) prohibits obtaining statements from an accused by way

of ill-treatment, fatigue, deception or other means affecting the

freedom of will. This provision, however, only applied to statements

brought about directly or indirectly by State organs, not however to

statements made by an accused at his own motion without having been

asked to do so.

The Italian undercover agent who heard the applicant talk to

his friend of the murder had by no means provoked the conversation in

question. Certain methods of mystification had to be allowed to the

prosecuting authorities in the interest of combating criminality

effectively. The case was not to be distinguished from a case where a

remand prisoner voluntarily informs another prisoner of having

committed an offence and is later denounced by this prisoner. In such

a case there would likewise be no reason not to admit the evidence in

question. Finally the Constitutional Court pointed out that the

Italian undercover agent had acted solely at the initiative of the

Italian authorities. In these circumstances it did not violate

constitutional law that the evidence given by him was also taken into

account by the German trial court. Even less so as it was the

applicant himself who had named the undercover agent as a witness

who could confirm the allegation that his friend admitted in the

Italian prison to having committed the murder.

&_COMPLAINTS&S

The applicant argues that his right to a fair trial as

guaranteed by Article 6 of the Convention was violated in that the

trial court considered evidence which was obtained in violation of

the principle that no accused is obliged to give evidence against

himself. He submits that he had been deceived by the Italian

undercover agent who pretended to have been arrested on account of

possession of heroin. As he did not know that this fellow prisoner

was in reality a police agent who understood German his freedom of

will was affected and thus he was led to make a statement which

was later held against him by the trial court.

&_THE LAW&S

The applicant has complained that his right to a fair trial as

guaranteed by Article 6 (Art. 6) of the Convention was violated because the

trial court, in convicting him, took into account evidence that was obtained

unlawfully, namely the statement of an Italian undercover police agent who had

pretended to be a remand prisoner and in front of whom the applicant spoke in

German to his friend not knowing that the police agent likewise understood

German.

It is true that the use of evidence obtained unlawfully by

coercive means may raise an issue as to the fairness of criminal

proceedings.

However, the Commission first notes that the applicant's

conviction is mainly based on his initial confession which was

considered to be confirmed by other circumstantial evidence, such as

the fact that he was the friend of his Italian accomplice, that they

had made shooting exercises and had robbed a bank shortly before the

murder. The evidence given by the Italian undercover agent was only

considered by the trial court in connection with the applicant's

allegation that his friend had stated in the presence of that agent

that he had committed the murder alone. In addition the Commission

notes that according to the Federal Constitutional Court the ruse

employed by the Italian police against the applicant does not in

itself constitute an unlawful method of obtaining evidence. The

applicant had an interest in not talking to his accomplice about

the crime in the presence of a third person. If he nevertheless freely

did so it is his own responsibility that this turned against him. He

has not alleged that the undercover agent in any way caused him to

talk about the killing of the business man. In these circumstances it

cannot be found that the applicant's freedom of will was affected by

the action of the Italian police so as to make the use of the evidence

obtained from the Italian undercover agent deprive the applicant of

his right to a fair trial as guaranteed by Article 6 (Art. 6) of the

Convention.

An examination by the Commission of this complaint does not

therefore disclose any appearance of a violation of the rights and

freedoms set out in the Convention and in particular in the above

Article.

It follows that the application is manifestly ill-founded

within the meaning of Article 27 (2) (Art. 27-2) of the Convention.

For these reasons, the Commission

&_DECLARES THE APPLICATION INADMISSIBLE.&S

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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A. v. THE FEDERAL REPUBLIC OF GERMANY

A. v. THE FEDERAL REPUBLIC OF GERMANY

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