The ECHR ruling of October 15, 2020 in the case "Akbay and Others v. Germany" (Akbay and Others v. Germany)" (aplication No. 40495/15 and other aplications).
In 2015, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were combined and communicated to Germany.
Aplications about the refusal to exclude evidence related to direct and indirect provocation of police officers in relation to the commission of a drug crime from the case materials were successfully considered in the case. The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant's husband, N. A., together with the first and second applicants, was convicted of drug-related crimes in the context of an operation to import drugs into the country. The German courts recognized that a provocation was committed against N. A. by the police officers, which prompted N. A. to commit a crime, and that the first (but not the second) applicant was subjected to indirect provocation. The penalties imposed on N. A. and the first applicant were reduced accordingly. The sentence imposed on the second applicant was generally commuted.
Regarding compliance with article 34 of the Convention. According to the applicant, the direct victim of a violation of article 6 of the Convention was her husband, N. A. He died before the complaint was filed with the European Court. In this regard, the European Court had to consider whether the applicant had the right to participate in the case solely on the basis that the actions of the German authorities, allegedly violating the requirements of the Convention, had a direct impact on her rights, because she could prove the existence of a moral and material interest, which allowed her to file a complaint.
(a) Moral interest. A potential violation of article 6 of the Convention based on an unlawful provocation to commit a crime that might otherwise not have been committed raises issues that go beyond just procedural violations, as a result of which the proceedings are recognized as unfair. Taking into account that the establishment of the fact of provocation should lead to the fact that all evidence obtained during provocative or similar actions should be excluded from the case materials, the conclusion of the European Court that there was a violation of Article 6 of the Convention as a result of this will allow the interested person to reasonably appeal at the domestic level the legality of the sentence based on this evidence.
(b) Material interest. As for the potential claim for compensation under article 41 of the Convention in the event of a violation of Article 6 of the Convention in the case against N. A., it can be concluded from the case-law of the European Court that the necessary direct consequences for the applicant's material rights from the application of the appealed measure should primarily concern the rights established by the State. Conversely, a potential claim for compensation under article 41 of the Convention, which primarily provides for the establishment of a violation of the applicant's rights, is insufficient to consider the applicant a potential victim of a violation of article 6, paragraph 1, of the Convention. This requirement can take place only when a violation of article 6, paragraph 1, of the Convention is established. Thus, a potential claim for compensation under article 41 of the Convention cannot be considered as a material interest that would allow the applicant to file a complaint on her own behalf.
(c) A matter of public interest concerning "respect for human rights". The present case does indeed raise issues, in particular, about provocation by the police, which was recognized by the German courts, as well as about the consequences of recognizing the fact of police provocation, in order to comply with the requirements of Article 6 of the Convention, as they are interpreted, for example, in the case "Furcht v. Germany" (Judgment of the European Court of 23 October 2014, complaint No. 54648/09). Consequently, the main issue raised in the applicant's complaint goes beyond her personal interests, since it concerns the legal system and the legal practice of the German authorities.
As a result, taking into account the applicant's moral interest and the existence of a matter of public interest in the case and related to "respect for human rights", the European Court, after conducting a general assessment, concluded that there were exceptional circumstances that justified the recognition of the applicant's status as a victim of a violation of the Convention.
In the case, the preliminary objection of the German authorities under article 34 of the Convention was rejected (adopted unanimously).
Regarding compliance with paragraph 1 of article 6 of the Convention. (a) Verification of the merits of the provocation complaint. The German courts recognized that both N. A. and the first applicant, but not the second, were subjected to provocation by police officers.
While N. A. was in direct contact with an undercover police agent and with an informant acting on the instructions of police officers, the first and second applicants did not contact these persons directly.
A person can be considered an object of provocation if he did not directly contact undercover police officers, but was involved in the commission of a crime by an accomplice who was directly provoked to this by police officers. In this regard, the European Court considered the questions of whether the police officers could have foreseen that the person whom they directly provoked to commit the crime could probably have contacted other persons with the aim of involving them in the commission of the crime, whether the actions of the said person were also determined by the police officers and whether the third parties involved in the case could be considered accomplices to the crime under German law.
- A. had no pre-established contacts for the purchase and transportation of drugs. Only a secure import channel, which creates a significant incentive for drug trafficking and the import of large volumes of drugs into the country, fully controlled by the authorities, provided N. A. and his accomplices with the opportunity to organize the transportation of drugs together with persons whom he met by chance.
- A. hired the first and second applicants to perform the operation. The first applicant had never participated in drug-related operations, and the second applicant, who had recently been convicted of drug trafficking, was not associated with N. A. in this capacity when the police officers were preparing the operation.
The police officers could have foreseen that N. A. would contact other persons, specifically those who would connect him with drug suppliers, in order to participate in a criminal scheme together. The first and second applicants decided to take part in the import of drugs together with N. A. precisely because of the presence of a safe import channel created by the police and described by N. A.
The first applicant was convicted of directly aiding and abetting N. A. in the commission of a drug-related crime. Therefore, his actions should be considered as conditioned by the fact that the German police have created a safe channel for importing drugs into the country.
Neither N. A. nor the first applicant would have committed the crime without the appropriate measures taken by the German police officers. Thus, they became victims of provocation - in the autonomous sense of this concept, as it is defined in the case - law of the European Court of Justice under article 6, paragraph 1, of the Convention-by police officers in order to force these persons to commit a drug-related crime for which they were subsequently convicted.
The second applicant was convicted of having agreed to take the drugs in the apartment after they were brought into the country through the port with the help of a port dock worker and left in the apartment, and then to transport the drugs to Berlin. Unlike the situation with the import of drugs through the port, the German police officers did not influence and were not involved in any other way in the subsequent transportation of drugs from the apartment. Although the second applicant was found guilty of illegal possession of drugs transferred to him by N. A., and of aiding and abetting N. A. in the transportation of drugs, his participation and his actions, therefore, could not be considered as determined by the plans of the police officers, who did not exert any pressure on the second applicant. Thus, the subsequent use in the criminal case against the second applicant of evidence obtained using undercover measures did not raise the issue of a violation of article 6, paragraph 1, of the Convention in this context.
(b) Procedural verification of the fact of provocation. As for N. A. and the first applicant, the Berlin Land Court did not stop the proceedings in their criminal cases and did not exclude any evidence related to the police provocation. He only significantly reduced the penalties imposed by him.
In the above-mentioned Decision in the case "Furcht v. Germany" (Furcht v. Germany), the European Court decided that all evidence obtained as a result of police provocation should be excluded from the case materials or it is necessary to apply a procedure similar in its consequences.
The Berlin Land Court used evidence directly obtained as a result of a police provocation, namely the testimony of an undercover agent, the testimony of police officers who controlled the informant, as well as the protocol of the informant's testimony. Although the German authorities claimed that the specified evidence was used mainly to convict N. A. and the first applicant only in the part in which the evidence did not contradict the confessions of the defendants, apparently, the defendants had no other way out to expose the fact of provocation, except to confess to committing a crime.
Since there was a close connection between the confession of a crime and the provocation that led to the commission of the crime, the Berlin Land Court had to exclude from the case materials not only the testimony of the undercover agent and the police officers who controlled the informant, as well as the protocol of the informant's testimony, but also the confessions of N. A. and the first applicant, or the court had to apply a procedure with similar consequences. At the level of the second instance court, the error of the lower court to draw appropriate conclusions from the police provocation was repeated by the Federal Supreme Court (Justice) of Germany. Although both of the courts mentioned in the present case rendered their decisions before the European Court of Justice adopted the above-mentioned Decision in the case "Furcht v. Germany" (Furcht v. Germany), the decision of the Federal Constitutional Court of Germany was issued only a few months later. The Federal Constitutional Court of Germany has extensively cited the case-law of the European Court of Justice, including the above-mentioned Decision in the case "Furcht v. Germany" (Furcht v. Germany), and tried to draw lessons from these materials for the lower courts of Germany for future use. However, recognizing that the evidence against the first applicant obtained as a result of provocation was not completely excluded from the case file, the German Federal Constitutional Court tried to distinguish the case of N. A. and the first applicant from the above-mentioned decision in the case of "Fort against Germany" (v Furcht. Germany), for which the European Court has not seen any reason.
- A. and the first applicant could continue to claim that they are victims of a violation of paragraph 1 of article 6 of the Convention, since the German courts did not draw the necessary conclusions from the fact of the recognition of the presence of provocation to commit a crime.
In the case, there was a violation of the requirements of paragraph 1 of article 6 of the Convention in respect of the applicant and the first applicant, in the case there was no violation of the requirements of paragraph 1 of article 6 of the Convention in respect of the second applicant (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the first applicant 18,000 euros in compensation for non-pecuniary damage.