E. v. THE FEDERAL REPUBLIC OF GERMANY
Doc ref: 11403/85 • ECHR ID: 001-564
Document date: May 5, 1986
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The European Commission of Human Rights sitting in private on 5 May
1986, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr H.C. KRÃœGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (Art. 25);
Having regard to the application introduced on 29 November 1984 by
H.E. against the Federal Republic of Germany and registered on
12 February 1985 under file No. 11403/85;
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 applicant is a Turkish citizen, born in 1942 and presently
detained in prison at Berlin-Tegel.
It follows from his statements and the documents submitted by him that
on 8 December 1983 he and two co-accused were convicted by the Berlin
Regional Court (Landgericht) of having dealt with drugs (unerlaubtes
Handeltreiben mit Betäubungsmitteln). He was sentenced to three years
and six months' imprisonment.
According to the findings of the court the police obtained in May 1983
information that the applicant, who had been living in Germany since
1969 without having been convicted before, was a drug dealer.
Subsequently the police charged an informant (Vertrauensmann) to
contact the applicant in order to obtain evidence that he dealt with
heroin. Initially the informant did not succeed in initiating
concrete discussions with the applicant about drug deals. In August
1983 he eventually declared to the applicant that he was interested in
acquiring an important amount of hashish. The applicant agreed to
supply several kilogrammes thereof. A deal concerning eight
kilogrammes was concluded and the applicant was then arrested shortly
before the hashish was supposed to be handed over to the informant.
The court stated that the applicant had confessed that he concluded
the drug deal hoping thereby to pay off his debts.
The applicant lodged an appeal (Revision) alleging that, prior to his
contacts with the police informant, he had never dealt with drugs and
had been induced to do so by the police informant who pressed him for
months to provide drugs.
On 26 June 1984 the Federal Court (Bundesgerichtshof) rejected the
appeal as being ill-founded.
COMPLAINTS
The applicant submits that he was provoked by a police agent to commit
a drug offence. He argues that the action of the police informant
amounted to an interference with his private life as protected by
Art 8 (Art. 8) of the Convention. Furthermore he alleges violations
of Arts 5 (Art. 5) and 13 (Art. 13) of the Convention arguing that the
activities of police informants and undercover agents are not
regulated by law.
THE LAW
The applicant complains that a police informant incited him to enter
into an unlawful deal with drugs. He argues that this violated his
right to liberty and security guaranteed by Art 5 (Art. 5) of the as
well as his right to protection of private life (Art 8 (Art. 8)).
He has lodged an appeal to the Federal Court and thereby exhausted
domestic remedies as he could not in addition lodge a constitutional
complaint against the judgment given by a criminal court in Berlin
(West).
As regards the alleged violation of Art 5 (1) (Art. 5-1) which
guarantees, according to its first sentence, the right to liberty and
security of person, the Commission observes that this provision is
meant to offer protection against arbitrary arrest and detention. This
follows from the second sentence of para (1) (Art. 5-1-2) and the
following provisions of the Article.
As regards the alleged violation Art 8 (1) (Art. 8-1) which guarantees
the right to respect for private and family life, home and
correspondence the Commission considers that the action of the police
informant did not amount to any interference with this right.
According to the trial court's judgment the police only took action
against the applicant after having received information that he dealt
with drugs. The applicant was then contacted by an informant and
proposed a drug deal. He has, however, not shown that any kind of
pressure, threat or coercion was exercised against him by the
informant obliging or enticing him to enter into the deal. It follows
from the uncontested findings in the Regional Court's judgment that
the applicant confessed to having accepted the deal hoping to pay off
his debts. The applicant consequently accepted the offer and
subsequently he organised the deal for the purpose of earning money
and ameliorating his financial situation. In these circumstances it
cannot be found that he was in any way unduly influenced in his own
free will and initiative to accept and organise the drug deal (cf. Dec.
N° 10747/84, 7.10.85, unpublished).
Finally as regards the alleged violation of Art 13 (Art. 13) of the
Convention the Commission notes that the applicant had the possibility
of an appeal to the Federal Court.
An examination by the Commission of his complaint as it has been
submitted, including an examination made ex officio, 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
Articles.
It follows that the application is manifestly ill-founded within the
meaning of Art 27 (2) (Art. 27-2) 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)