Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12811/87

by Manfred RADERMACHER and Klaus PFERRER

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 8 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. WEITZEL

H. DANELIUS

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 17 March 1987

by Manfred Radermacher and Klaus Pferrer against the Federal Republic

of Germany and registered on 19 March 1987 under file No. 12811/87;

Having regard to:

- the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the observations submitted by the respondent Government on

27 January 1988 and the observations in reply submitted by the

applicant on 15 March 1988;

- the submissions made by the parties at the hearing on

8 December 1988;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

The first applicant, born in 1943, is a businessman resident

in Herzogenrath. The second applicant, born in 1944, is a housekeeper

resident in Aachen. Both applicants are German nationals. Before the

Commission they are represented by Mr. T. Vogler, Professor of Law

at Giessen University.

Both applicants were convicted by the Munich I Regional Court

(Landgericht München I) on 13 December 1985, the first applicant of

counterfeiting of money (Geldfälschung; § 146 Abs. 1 Nr. 2

Strafgesetzbuch) and the second applicant of having acted as an

accessory (Beihilfe). The first applicant was sentenced to two years

and nine months' imprisonment. The second applicant was sentenced

to one year's imprisonment, but the execution of his sentence was

suspended on probation.

As to the facts the Regional Court found in particular that in

1981 the second applicant had met W who was living in Leipheim and had

acted in the matter as an undercover agent ("V-Mann") for the Bavarian

Office of Criminal Investigation (Bayerisches Landeskriminalamt). For

years W had offered him dubious deals, but the second applicant had

always rejected these propositions and not yielded to W's urgent

requests. In the context of a proposed sale of a painting the second

applicant had gone to see W in Leipheim. On this occasion W had told

him among other things that somebody wanted to buy counterfeit money

up to a sum of 10 million US $. A wealthy banker intended to deposit

the counterfeit money in the vault of his bank and to grant through a

dummy a high credit on the basis of this "security". This credit

should be used for profitable transactions. The credit would be paid

back out of these profits and the counterfeits then destroyed. In the

course of time the second applicant had told the first applicant about

this offer, particularly after the matter had been raised several

times by W when talking with the second applicant on the phone.

According to the respondent Government, the Bavarian Office of

Criminal Investigation received information about a group of persons

offering counterfeit money in the Aachen area in 1982 and 1983.

According to the Government's submissions, W met the second applicant

for the first time in January 1983.

In its findings as to the facts, the Munich I Regional Court

further stated that, when in 1984 the first applicant faced financial

difficulties and learned about an opportunity to obtain counterfeit

US $ from Belgium, the second applicant had arranged a meeting with W

in Leipheim. W had repeated the offer he had earlier made to the

second applicant and this time offered the first applicant the

opportunity to make the deal.

In agreement with W the first applicant had then negotiated

with some Belgians about the delivery of counterfeit money. At

another meeting in Stuttgart with W and a certain "Hans", who was

either another undercover agent of the Bavarian Office of Criminal

Investigation or an official of this Office, it had been agreed that

the counterfeits to be delivered should consist of 50- or 100-US $

notes. "Hans" had later decided that the counterfeit banknotes should

be numbered consecutively and that fluorescent paper should be used.

"Hans" had also examined one proof passed on to him by the first

applicant and expressed his satisfaction about its quality. He had

furthermore been informed by the first applicant of the payment asked

by the Belgians for the first partial delivery of 500.000 US $ and

agreed to it.

Having received the counterfeit money from the Belgians in

Germany on 24 February 1985, the first applicant had been ordered by

"Hans" to come to Munich on 26 February 1985, where he was arrested

after negotiations with "Hans". The second applicant gave himself up

to the police in Munich on 31 July 1987.

The Regional Court considered that the activities of W and

"Hans" constituted a non-negligible element in regard to the offences

committed by the applicants but that they did not exceed the limits

permitted for activities of undercover agents. The Court further

stated:

"In the present case, the only objection against the

activity of the undercover agents could flow from the fact

that W <...> went on a 'fishing expedition' for potential

dealers of counterfeit money in (the second applicant's)

demi-monde milieu without a concrete initial suspicion

against (the second applicant). However, it is indispensable

to proceed in such a way in regard to dangerous delinquency

which is difficult to clear up as it is the case with

delinquency involving counterfeit money ... Otherwise it

would not be possible to trace counterfeit money

transactions of the present kind. Up to the moment when W

and 'Hans' entered into action in a concrete way, pretending

to be interested in buying counterfeit money, (the first

applicant) had already developed numerous activities of his

own for a long time - (the second applicant) had established

the connection - and thereby created a concrete suspicion.

It is therefore out of the question that (the applicants)

were instigated by undercover agents of the Bavarian Office

of Criminal Investigation."

"Das einzige Bedenken gegen die Lockspitzeltätigkeit

könnte im vorliegenden Fall daraus fließen, daß W ... ohne

konkreten Anfangsverdacht gegenüber Pferrer in dessen Halb-

weltmilieu die Angel nach potentiellen Falschgeldhändlern

auswarf. Indes kann auf ein solches Vorgehen bei gefähr-

licher und schwer aufklärbarer Kriminalität, wie es u.a. die

Falschgeldkriminalität ist, nicht verzichtet werden (...).

Andernfalls wäre es nicht möglich, Falschgeldgeschäften der

vorliegenden Art auf die Spur zu kommen. Bis zu dem Zeit-

punkt, als W und 'Hans' konkret als vorgebliche Falschgeld-

abnehmer in Aktion traten, hatte der Angeklagte R (der erste

Beschwerdeführer) schon über einen langen Zeitraum zahlreiche

Eigenaktivitäten entwickelt - P (der zweite Beschwerdeführer)

die Verbindung hergestellt - und damit einen konkreten Verdacht

gesetzt. Von einer Anstiftung der Angeklagten durch V-Leute

des Bayerischen Landeskriminalamts kann daher hier keine Rede sein."

In fixing the sentences the Court considered as mitigating

circumstances that the offences committed by the applicants had been

strongly supported by the "agents provocateurs".

This judgment was upheld by the Federal Court of Justice

(Bundesgerichtshof) on 1 July 1986. This Court found that the police

had had a legitimate interest in finding out how the first applicant was

able to obtain such a quantity of counterfeit money and - when it became

apparent that the counterfeit money was still to be produced - who the

manufacturers were. The Regional Court did sufficiently take into

account the activity of the prosecution authorities when determining

the sentence.

On 16 September 1986 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to accept the applicants' constitutional

complaint (Verfassungsbeschwerde) as not offering sufficient prospects

of success. It stated that the use of undercover agents was necessary

for combating the most dangerous crimes. In the present case the

first applicant was not directly induced to commit the crime by

the influence of undercover agents but by a hint of a former friend.

He developed essential initiatives of his own and it was he and not

the agents who made the second applicant establish the connection with

the persons purporting to be interested in buying the counterfeit money.

On 8 January 1987, the Duisburg Regional Court decided to

suspend on probation the execution of the remaining part of the first

applicant's sentence. The Public Prosecutor's appeal against this

decision was rejected by the Düsseldorf Court of Appeal (Oberlandes-

gericht) on 3 February 1987.

COMPLAINTS

The applicants complain under Article 6 para. 1 of the

Convention that they were induced by undercover agents to commit the

offences of which they were eventually convicted. The counterfeiting

was initiated and controlled by the Bavarian Office of Criminal

Investigation. There was no offence which could have been cleared up

by using undercover agents. None of the applicants were suspected of

having anything to do with production or distribution of false

money. Therefore there were no "suspects" nor was there any offence.

It was the use of the undercover agents which led to the production of

counterfeit money and made the applicants become "suspects". Crimes were

not cleared up, but produced. In this respect the present case has to

be distinguished from Application No. 10747/84 where a suspicion

already existed at the time when the contact was established by the

undercover agent. In the present case, however, there was not the

slightest reason for entertaining a suspicion against the applicants.

Under such circumstances the use of undercover agents was not

justified and it was contrary to the principle of fair trial as

guaranteed by Article 6 para. 1 of the Convention.

The applicants also complain that contrary to Article 6 para.

3 (d) of the Convention the Munich I Regional Court refused to summon the

responsible public prosecutor whose examination had been requested by

the defence in order to clarify the full extent to which official

agencies were involved in this matter. Additionally, the prosecution

had manipulated the availability of evidence to the applicants'

detriment by initiating criminal proceedings against W. Thus, the

prosecution saw to it that W became privileged and entitled to refuse

to give evidence.

The second applicant finally claims to be a victim of

discrimination contrary to Article 14 of the Convention. Although he

did not have a criminal record it was apparently justified to trouble

him by having State organs induce him to commit criminal offences on

account of his working and living in the "demi-monde milieu". The

Convention guarantees the right to liberty and security of person

(Article 5) and to a fair trial (Article 6 para. 1) for everyone. The

right to liberty and security also includes the right to be safe from

being induced by State organs to commit criminal offences. It is an

intolerable discrimination to abuse him as a means for clearing up

criminality and make him serve public purposes because of his working

and living amongst the so-called "demi-monde".

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 March 1987 and registered

on 19 March 1987.

On 9 November 1987 the Commission decided that, in accordance

with Rule 42 para. 2 (b) of the Rules of Procedure, notice should be

given to the respondent Government of the application and that the

Government should be invited to submit written observations on the

admissibility and merits of the case. The Government's observations

dated 27 January 1988 were received on 1 February 1988. After

extension of the time-limit, the applicant submitted his reply on

25 March 1988.

On 8 July 1988 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application.

At the hearing which was held on 8 December 1988 the parties

were represented as follows:

The Government

Mr. J. Meyer-Ladewig Ministerialdirigent,

Federal Ministry of Justice,

Agent

Mr. E. Liedgens Erster Kriminalhauptkommissar,

Bavarian Office of Criminal Investigation,

Adviser

The Applicants

Mr. T. Vogler Professor, Counsel

Mr. W. Krüger Rechtsanwalt, Counsel

The applicants attended the hearing in person.

SUBMISSIONS OF THE PARTIES

A. The respondent Government

1. The Government consider that the application is not

inadmissible under Articles 26 and 27 para. 3 of the Convention.

2. The Government maintain that the use of "agents provocateurs"

does not, as such, violate the rights and freedoms under the

Convention. They refer, in this respect, to the Commission's

decisions on the admissibility of Applications No. 9165/80 (Dec.

6.7.81) and No. 10747/84 (Dec. 7.10.85) concerning the punishment of

offences committed at an occasion specially prepared as a trap to

catch the person in question, and the use of an "agent provocateur",

respectively. They consider that the use of "agents provocateurs"

might only in exceptional circumstances violate the Convention.

3. The Government submit that the right to a fair hearing under

Article 6 para. 1 of the Convention calls for interpretation by the

domestic legislator and the High Contracting Parties. The lack of

precision of this right excludes that specific guarantees are derived

therefrom, unless indispensable requirements of a fair hearing under the

rule of law are no longer met.

A right not to be convicted on account of special

circumstances, such as prosecution being statute-barred or, as in the

present case, the use of "agents provocateurs", is not indispensable

for a fair hearing. A balance has to be struck between the public

interest in prosecution and the legitimate interests of the individual

concerned, and a wide margin of appreciation has to be left to the

national legislator and the national courts.

German law provides for a fair balance in such cases: in

the present case, the use of "agents provocateur" was considered as a

mitigating fact and the execution of the remaining half of the first

applicant's sentence was suspended on probation.

In the present case, there are, therefore, no exceptional

circumstances necessitating a review by the Commission. The

applicants decided freely and on their own initiative to enter into

the deal with the counterfeit money. The first applicant made

up his mind to commit the offence when he heard about the opportunity

to receive counterfeit money, and remembered a person interested in

such a deal who had talked to the second applicant years ago. The

fact that this person was an "agent provocateur" did not decisively

influence the first applicant's decision to organise a deal with

counterfeit money. The first applicant himself developed considerable

criminal energy to get into contact with the "agent provocateur".

Furthermore the Convention, especially Article 6 para. 1, does

not require that an "agent provocateur" cannot be used unless there is

a reasonable suspicion that the person concerned has committed an

offence or intends to commit an offence. The Convention does not

contain any provision concerning the use of "agents provocateurs"

which corresponds to Article 5 para. 1 (c) of the Convention as

regards arrest and detention on remand. Rather Article 6 para. 1

second sentence and para. 3 (c) of the Convention expressly refer to

public interests.

For the interpretation of the right to a fair hearing under

Article 6 para. 1 of the Convention, account is, therefore, to be

taken of the public interest to efficiently prosecute offences in

connection with counterfeit money.

4. The Government submit that Article 6 para. 3 (d) of the

Convention does not confer upon a person charged with a criminal

offence an unlimited right to obtain the examination of witnesses.

A court can dismiss a request to take evidence if, in the court's

opinion, the result is not relevant for ascertaining the truth. The

applicant's allegation that the official agancies had been involved in

a plan to instigate the applicants to produce counterfeit money was

completely unfounded. The Munich I Regional Court had, therefore, not

been required to summon the responsible public prosecutor as requested

by the applicants.

Furthermore the Government submit that the proceedings had not

been manipulated by instituting criminal proceedings against the

witness W. W would have had, in any event, the right to give evidence

under S. 55 para. 1 of the Code of Criminal Procedure. Moreover the

allegations to be proved by the testimony of W had been supposed to be

true.

5. The Government consider that the second applicant was not

discriminated against on account of his "demi-monde" business contrary

to Article 14 of the Convention. Rather the police correctly assumed

that, by contacting the second applicant, they could get information

about persons producing and dealing with counterfeit money.

6. The Government request the Commission to declare the

application inadmissible as being manifestly ill-founded.

B. The applicants

1. The applicants consider that the facts of the two decisions of

the Commission, referred to by the Government, cannot be compared to

the circumstances of the present application.

Furthermore they do not intend to question the use of "agents

provocateurs" in the suppression of crime in general. However, the

question at issue in the present case is whether or not public

prosecution authorities may incite persons of unblemished character to

commit criminal offences, even if these persons are not suspected of

having already been involved in criminal offences. Without the

instigation by the "agents provocateurs" the applicants would not have

committed any criminal offence. The question whether or not they

freely and on their own initiative decided to enter into the deal is

therefore irrelevant. There are reasonable doubts whether, without

the activities of the "agents provocateurs", counterfeiting offences

had been committed at all.

The applicants consider that they were unfairly treated by the

undercover agent W in the public interest in criminal prosecution.

He instigated them to commit criminal offences in order to get hold

of other suspected criminals. Such behaviour could not be justified

by the public interest in an efficient suppression of crime. The

theory of striking a balance between the public and individual

interests involved disregards that procedural guarantees cannot be

made dependent upon the nature of criminal offences without losing

their function.

2. As regards Article 6 para. 3 (d) of the Convention the

applicants maintain that, had the evidence in the proceedings against

them not been manipulated, there had been no reason to dismiss the

applicants' requests in particular to have access to the files

concerning the criminal proceedings against the undercover agent W.

THE LAW

1. The applicants complain under Article 6 para. 1 (Art. 6-1) of

the Convention that the criminal proceedings against them were unfair

on the ground that the offences of which they were convicted had been

brought about by undercover agents of the German police.

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

provides:

"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 within a reasonable time by an

independent and impartial tribunal established by law."

The Government consider that the use of "agents provocateurs"

does not, as such, violate the rights and freedoms under the

Convention. In particular, having regard to the right to a fair

hearing under Article 6 para. 1 (Art. 6-1) of the Convention, a fair

balance had to be struck between the public interest in prosecution

and the legitimate interests of the individual concerned, and a wide

margin of appreciation had to be left to the national legislator and

courts. In the present case, the activities of the undercover agents

had been reasonably taken into account when fixing the applicants'

sentences.

The Commission considers that the applicants' complaint, that

the use of the undercover agents to induce them to commit the offences

of which they were eventually convicted was contrary to the principle

of fair trial, raises questions of fact and of law which are of such a

complex nature that their determination requires an examination of the

merits. The application cannot, therefore, be declared manifestly

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

Convention, but must be declared admissible, no other ground for

declaring it inadmissible having been established.

2. Furthermore the applicants complain that the Munich I Regional

Court refused to summon a witness as requested by the defence and that

the availability of evidence was manipulated. They invoke Article 6

para. 3 (d) (Art. 6-3-d) of the Convention which provides that

everyone charged with a criminal offence has the right 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. Moreover, the second applicant complains

about discrimination contrary to Article 14 (Art. 14) of the

Convention. The Commission finds that these complaints concern

certain aspects of the fairness of the criminal proceedings as a whole

which cannot be separated from the complaint under Article 6 para. 1

(Art. 6-1) of the Convention which the Commission found to be

admissible above. Accordingly, these complaints must also be declared

admissible.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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RADERMACHER AND PFERRER v. GERMANY

RADERMACHER AND PFERRER v. GERMANY

LEXI