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JISCBAILII_CASE_ HUMAN_RIGHTS_ECHR

In the case of Lüdi v. Switzerland*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention")** and

the relevant provisions of the Rules of Court, as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr F. Matscher,

Mr B. Walsh,

Mr A. Spielmann,

Mr S.K. Martens,

Mr A.N. Loizou,

Mr F. Bigi,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 27 January and

26 May 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 17/1991/269/340. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 8 March 1991 and

by the Government of the Swiss Confederation ("the Government")

on 25 April 1991, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 12433/86)

against Switzerland lodged with the Commission under Article 25

(art. 25) by Mr Ludwig Lüdi, a Swiss national, on

30 September 1986.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Switzerland

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46), and the Government's application referred to

Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The object

of the request and application was to obtain a decision as to

whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 paras. 1

and 3 (d) and Article 8 (art. 6-1, art. 6-3-d, art. 8).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30) and whom the President

gave leave to use the German language (Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mrs D. Bindschedler-Robert, the elected judge of Swiss

nationality (Article 43 of the Convention) (art. 43), and

Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)).

On 22 March 1991, in the presence of the Registrar,

Mr F. Matscher, having been duly delegated by the President, drew

by lot the names of the other seven members, namely

Mr J. Cremona, Mr J. Pinheiro Farinha, Mr A. Spielmann,

Mr S.K. Martens, Mr I. Foighel, Mr A.N. Loizou and Mr F. Bigi

(Article 43 in fine of the Convention and Rule 21 para. 4)

(art. 43).

Mr F. Matscher as substitute judge and Mr L. Wildhaber as

the elected judge of Swiss nationality subsequently replaced

Mr Pinheiro Farinha and Mrs Bindschedler-Robert respectively, who

had resigned from the Court and whose successors had taken up

their duties before the hearing (Rules 2 para. 3 and 22 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Government, the Delegate of the Commission and the lawyer

for the applicant on the organisation of the procedure (Rule 37

para. 1 and Rule 38). Pursuant to the order made in consequence,

the Registrar received the memorials of the applicant and the

Government on 23 August 1991. On 28 October the Secretary to the

Commission informed him that the Delegate would submit his

observations at the hearing.

5. On 10 September 1991 the Commission supplied various

documents, as requested by the Registrar on the President's

instructions.

On 10 January 1992 Mr Foighel, who was unable to take part

in the further consideration of the case, was replaced by

Mr B. Walsh, substitute judge (Rules 22 para. 1 and 24 para. 1).

6. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 22 January 1992. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr O. Jacot-Guillarmod, Under-Secretary of the

Federal Office of Justice, Head of the

International Affairs Division, Agent,

Mr T. Maurer, Presiding Judge of the Economic

Criminal Court of the Canton of Berne,

Mr F. Schürmann, member of the European Law and

International Affairs Section, Federal Office

of Justice, Counsel;

(b) for the Commission

Mr S. Trechsel, Delegate;

Mr P. Joset, avocat, Counsel,

Mr D. Krauss, Professor at the

University of Basle, Adviser.

The Court heard addresses by Mr Jacot-Guillarmod and

Mr Maurer for the Government, by Mr Trechsel for the Commission

and by Mr Joset and Mr Krauss for the applicant, as well as their

replies to its questions.

AS TO THE FACTS

I. The particular circumstances of the case

7. Mr Ludwig Lüdi, a Swiss national, resides at Röschenz in the

Canton of Berne.

8. In 1983, while in Germany, he was charged with trafficking

in drugs. On 30 November 1983 the 16th Criminal Chamber of the

Stuttgart Regional Court ordered the proceedings to be

discontinued as a result of various procedural problems,

including the intervention of a German undercover agent (V-Mann).

On appeal by the public prosecutor's office, the Federal

Court (Bundesgerichtshof) set the order aside on 23 May 1984 and

remitted the case to the Stuttgart Regional Court. That court

adjourned the case sine die on the grounds that the applicant and

his co-defendant, who had been at liberty since 2 September 1983,

had returned to Switzerland.

A. The intervention of the undercover agent and the

applicant's arrest

9. On 15 March 1984 the German police informed the police of

the Canton of Berne that the applicant had asked a fellow

countryman whom he had met while in detention for 200,000 Swiss

francs to finance the purchase of approximately 5 kg of cocaine

in Switzerland.

In order to obtain fuller information on the drugs deal and

seize the drugs in question, the investigating judge at the

Laufen District Court (Amtsgericht) opened a preliminary

investigation on 15 March 1984. With the agreement of the

Indictments Chamber of the Court of Appeal (Obergericht) of the

Canton of Berne and pursuant to Article 171b of the Berne Code

of Criminal Procedure (see paragraph 26 below), he also ordered

the applicant's telephone conversations to be monitored.

On 20 June the Indictments Chamber authorised the telephone

interception to be extended to 15 September 1984.

10. In addition, the Laufen police and the special drugs unit

decided that a sworn officer of the Berne Cantonal Police should

pass himself off as a potential purchaser of the cocaine, under

the assumed name of Toni. They acted with the authorisation of

cantonal police headquarters, and notified the investigating

judge at the Laufen District Court of their plan.

11. According to the Government, Toni had attended a course on

12 and 13 December 1978 intended for cantonal officials with

responsibility for the fight against drug trafficking, with the

aim of drawing their attention to the limits to which their

undercover activities were subject and the relevant provisions

of the law. Shortly before acting in the present case, Toni was

reminded at a meeting with his superior officers of the limits

beyond which he was not to go.

12. The applicant met Toni on 19 and 21 March, 15 May and 5 and

14 June 1984, on the latter's initiative on each occasion, as the

applicant did not know his real identity, address or telephone

number.

13. He was arrested on 1 August 1984 and charged with unlawful

trafficking in drugs. The investigating judge at the Laufen

District Court terminated the telephone interception on the same

day. In a letter of 22 August 1984 he informed the applicant

that he had ordered telephone interception and that it had lasted

from 15 March to 2 June 1984.

According to Toni's reports, Mr Lüdi had promised to sell

him, as intermediary, 2 kg of cocaine worth 200,000 Swiss francs,

and had borrowed 22,000 Swiss francs from a third person for the

purchase of cocaine or other narcotics.

14. On 3 August 1984 the police searched the applicant's home

and found traces of cocaine and hashish on a number of objects.

15. On 5 September 1984 the investigating judge at the Laufen

District Court ordered the applicant to be released on the ground

that he had made "extensive admissions as to the essential parts

of the investigation [and that] there [was] consequently no

longer any risk of collusion or flight".

The Berne police, relying on the results of the preliminary

investigation, filed a criminal complaint on 25 October 1984.

B. The proceedings before the Laufen District Court

16. On 4 June 1985 the Laufen District Court found the applicant

guilty of seven offences against the Federal Drugs Law and

sentenced him to three years' imprisonment. In order to preserve

the anonymity of the undercover agent, the court declined to call

him as a prosecution witness; it considered that the records of

the telephone interception and the undercover agent's reports

showed clearly that, even without the agent's intervention,

Mr Lüdi had had the intention of acting as an intermediary in the

supply of large quantities of narcotics.

C. The proceedings before the Berne Court of Appeal

17. Mr Lüdi appealed against his conviction for two of the seven

offences, the attempted supply of cocaine to Toni and the

attempted purchase of cocaine or another drug by means of the

loan he had arranged.

18. On 24 October 1985 the Berne Court of Appeal (First Chamber)

confirmed the judgment of 4 June 1985 (see paragraph 16 above).

The Court of Appeal did not call the undercover agent either.

The court found that the evidence adduced before the trial

court had in essence corroborated the content of Toni's report,

in particular with regard to the general course of events. This

had clearly shown that the applicant - as had not been disputed

by him - had made great efforts in order to supply Toni with 2

kg of cocaine, had contacted M. and then B., travelled to Ticino

and Italy, and arranged meetings between Toni and a possible

supplier. After initially minimising things, he had eventually

decided to admit all these facts, which also followed partly from

the interception of his telephone conversations and the

statements of M. It had to be regarded as established that

Mr Lüdi had been the first to speak to S. about purchasing

cocaine; besides, S. had confirmed this, although he had toned

down his original statements on this point to some extent.

The court then dealt with the applicant's argument that

section 23 subsection 2 of the Federal Drugs Law did not apply

to Toni's actions. The court said that the mere fact that the

applicant had planned a significant deal in cocaine before his

first contact with the undercover agent brought him within

section 19 of that Law.

Finally, the detailed reports of the telephone interception

showed very clearly that Mr Lüdi had persistently (beharrlich)

and on his own initiative attempted to carry out a drugs deal,

and that he had for this purpose intended to bring Toni in as the

"banker", as he himself did not have the required funds.

D. The appeals to the Federal Court

19. Mr Lüdi then brought a public law appeal and an application

for a declaration of nullity to the Federal Court

(Bundesgericht).

20. He alleged in the former that there had been an interference

with his right to respect for his private life, which had not

been compatible with Article 8 (art. 8) of the Convention. He

argued firstly that the monitoring of his telephone conversations

had not been "in accordance with the law" and had not been

justified under paragraph 2, as he had been suspected merely of

having had the intention of committing an offence. Secondly, he

complained of the intervention of an undercover agent, which he

alleged had been intended to incite him to take part in drug

trafficking. He further claimed that the telephone interception

could not be used in evidence and that the mere reading of the

agent's reports, without the agent being called as a witness, had

prejudiced the exercise of the rights of the defence, in breach

of Article 6 (art. 6).

21. On 8 April 1986 the Federal Court dismissed the public law

appeal, for the following reasons:

"...

(a) The public law appeal raises two objections to the

ordering of the telephone surveillance. Firstly, it is

argued that at the stage of 'generally investigative police

enquiries' telephone interception was ordered for which

there was no statutory provision at that stage; a

preliminary investigation was started only for the sake of

appearances. Secondly, the appellant complains that

Bernese criminal procedure law permits of no preventive

telephone surveillance and that the present case did not

concern an investigation into an offence which had been

committed, but the ascertainment of offences which were

about to happen.

(b) Under Article 171b of the Berne Code of Criminal

Procedure (StrV) an investigating judge can order

surveillance of a suspect's postal, telephone and telegraph

communications 'if an offence whose seriousness or

particular features justify the interference or an offence

committed by means of the telephone is being investigated'.

It is not disputed that in the present case the telephone

surveillance was ordered by the competent authority and the

procedural rules in Article 171c StrV were complied with.

That telephone surveillance in the initial stage of

inquiries is excluded by cantonal law does not follow from

the Code of Criminal Procedure, nor has it been

demonstrated by the appellant. Depending on the

circumstances, telephone interception is often appropriate

precisely at the beginning of an investigation. From this

point of view there is no indication whatever that the

order complained of could have infringed the Constitution

or that it was made under an arbitrary interpretation of

cantonal law.

wording of Article 171b StrV telephone surveillance and the

other measures regulated thereby are to be strictly

confined to investigations of offences already committed,

excluding the possibility of preventive surveillance where

there is a strong suspicion that offences are about to be

committed. Under the sixth paragraph of section 19

subsection 1 of the Drugs Law (Betäubungsmittelgesetz) a

person who takes steps in order to participate in some

manner in dealing with drugs, transporting or storing them

has already committed an offence. By Lüdi's conduct as

reported from Germany, namely his search for finance for a

cocaine deal, he had already taken steps as defined above,

so that, that being the case, the elements of an offence

were already present, and the telephone surveillance

ordered related not only to the discovery of planned crimes

but also to the investigation of offences which had already

been committed.

Moreover, it would not be untenable to interpret

Article 171b StrV by analogy as a legal basis for

preventive measures too, where the interference is

justified by the seriousness or particular features of the

offence which is anticipated. The telephone surveillance

ordered in this case on a basis of serious suspicion of a

crime was certainly not an abuse of the law.

3. (a) The use of so-called undercover agents is not

expressly provided for in Swiss criminal procedure law, but

the dominant opinion is that it is permissible in

principle, in so far as the particular nature of the

offences is capable of justifying the covert investigative

acts and the undercover agent investigates the criminal

activity in a predominantly passive manner without using

his own influence to arouse willingness to commit the act

and induce criminal conduct ... The federal legislature

has in section 23 subsection 2 of the Drugs Law expressly

taken into account the possibility of using an undercover

agent in criminal investigations in the field of drug

trafficking.

(b) In the ... public law appeal the permissibility of

covert investigation in terms of the rule of law is not

denied in general and as a matter of principle, but the

view is taken that the use of an undercover agent

represents a serious interference with the private life and

personal freedom of the person concerned and such an

interference is possible in a State subject to the rule of

law only if founded on a sufficiently precise legal basis

...

Such a requirement of a legal basis for the use of

undercover agents has not been discussed as yet in Swiss

case-law and legal writing, nor expressly acknowledged as

a restraint from the point of view of the rule of law.

This would be a continuation and extension of the

legislature's reasons underlying the requirement for

statutory regulation of telephone interception and similar

investigative measures. While coercive measures in the

course of criminal procedure (such as arrest, house

searches, etc.) clearly interfere against the will of the

person concerned with legally protected rights, and

surveillance of telephone, postal and telegraph

communications without the knowledge of the person

concerned interferes in the interests of prosecuting crime

with areas of confidentiality which are protected by law,

the use of undercover agents is problematic at a somewhat

different level: the personal freedom of the person

concerned is not restricted, nor does he have to tolerate

any other coercive measures, but he comes into contact with

a partner who is unknown to him, but with whom he would not

have dealings if he knew that he was working for criminal

investigation. Where the undercover agent by means of his

contacts merely ascertains criminal conduct which would

have taken place in the same or similar fashion even

without his intervention, the use of an undercover agent is

no doubt unobjectionable. On the other hand, it would not

be permissible if the undercover agent were to take the

initiative, as it were, and provoke criminal activity which

would otherwise not have come about at all; for the

prosecuting authorities must not provoke criminality in

order to be able to prosecute criminals whose readiness to

commit crime, possibly present but latent, would otherwise

not have become manifest. If the undercover agent fosters

the criminality of the person concerned without it being

possible to regard him directly as initiating or inciting,

but nevertheless in such a way that it must be assumed that

the criminal act would have been of lesser extent and

seriousness without the 'participation' of the undercover

agent, this is to be taken into account when passing

sentence.

Covert investigation does not encroach on a basic

right protected by the Federal Constitution (or the

European Convention). The person concerned is free as

regards his decisions and his behaviour towards the

undercover agent; he is, however, deceived as to the

identity of his negotiating partner and the latter's

connection with the police. A criminal is not protected by

constitutional law against being observed in the course of

his illegal conduct by a police officer who is not

recognisable to him as such. Nor can any protection of a

criminal against covert investigation be derived from the

European Convention (Article 8) (art. 8). Whether the

investigative methods of undercover agents should because

of certain risks of abuse be statutorily regulated, and

whether a statutory rule would be likely to counteract any

abuses better than is currently done by case-law, is for

the legislature to decide. According to current

constitutional law and statute law, the use of an

undercover agent is permissible within the bounds set by

the general principles of the rule of law, without it

requiring an express statutory basis. There are other

investigative measures too - as for example the constant

surveillance of a suspect - which may seriously affect

private life and lead to findings which are unwelcome for

the person concerned, without it ever having been thought

necessary for there to be a statutory basis for such

measures.

requirement of a statutory basis for the use of undercover

agents, it is not necessary to examine whether section 23

subsection 2 of the Drugs Law could be regarded as a

sufficient statutory basis in the absence of a

corresponding provision in cantonal procedural law. The

wording of the subsection shows that it is not an enabling

provision of criminal procedure, but a rule of substantive

law on the question, which need not be discussed here, as

to the circumstances under which acts by an undercover

agent which are objectively the elements of an offence are

not liable to punishment.

4. The activity of undercover agent 'Toni' did not go

beyond the bounds, described above, of covert investigation

acceptable in a State governed by the rule of law:

(a) The investigation of suspected drug offences is

often, because of the nature of such offences, possible

only by an undercover agent. It is precisely in this

sphere that this method proves to be necessary and

effective ... Once a report had been received of a

definite suspicion that the appellant wished to carry out

a substantial cocaine deal, it was not disproportionate to

use a police officer to pose as a buyer. This did not

involve an arbitrary interpretation of cantonal procedural

law, nor was there a breach of a basic right or a human

right protected by the European Convention.

(b) On the basis of the statements made by the various

parties, and assessing the evidence in a reasonable and

non-arbitrary fashion, the court below found that Lüdi

first mentioned a cocaine deal to Schneider and then

spontaneously offered 'stuff' to the interested party

'Toni' as well. Although subsequently it was always 'Toni'

who contacted Lüdi to find out how things were progressing,

it does not follow from this that the appellant did not

commit an offence. Lüdi of his own accord got in touch

with possible suppliers and also tried to find money for

drug dealing elsewhere. As he had no telephone number for

'Toni', he necessarily had to wait for him to ring him.

The essential point is that 'Toni' did not act as the

instigator, but by posing as a buyer merely made it

possible to investigate the appellant's activities, which

were aimed at a substantial deal in cocaine.

5. The appeal argues at great length that no account may

be taken directly or indirectly of the statements of

undercover agent 'Toni', for the further reason that he was

not summoned and heard as a witness ... . If it is

recognised that the use of undercover agents is justified

in the public interest in fighting as effectively as

possible against drug dealing, it follows that the identity

and the investigative methods of such agents are not

lightly to be given away in criminal proceedings; for their

continued use would thereby effectively be made largely

impossible. Preserving the secrecy of undercover agents

does not in itself infringe principles of criminal

procedure or constitutional rights. It is a matter for the

court assessing the evidence to decide what weight can be

attached in a particular case to the written statements of

an undercover agent who has not appeared before the court,

where there are legally relevant facts which are in

dispute. The allegations that the appellant carried out

preparatory actions which constituted criminal offences

have been substantiated by the result of the telephone

interception, the appellant's own statements and those of

the other persons involved. If the court below attributed

to the undercover agent a somewhat less active role than

that alleged by the appellant in his account of the facts,

that was not arbitrary but was based on a tenable

assessment of the evidence.

..."

(Annuaire suisse de droit international, 1987,

pp. 229-230 and 232-234)

22. In contrast, in a judgment of the same day, the Cassation

Division of the Federal Court granted the application for a

declaration of nullity. The court said that the Laufen District

Court, when convicting the applicant, had not taken sufficient

account of the effect on his behaviour of the actions of the

undercover agent, and the Berne Court of Appeal had not mentioned

the outcome of the proceedings brought against the applicant in

Germany or the fact that he had no criminal record.

The Federal Court remitted the case to the Berne Court of

Appeal.

23. On 19 February 1987 the First Chamber of that court reduced

the sentence to eighteen months' imprisonment, suspended for

three years. It also ordered that the out-patient medical

treatment which Mr Lüdi had started while in detention should be

continued. As grounds for its decision it cited its concern to

take into account the intervention of Toni, and a psychiatric

report stating that the applicant had been under the influence

of cocaine at the time of the offences and hence had only limited

responsibility.

II. Relevant domestic law

A. The Federal Drugs Law of 3 October 1951

24. The Drugs Law provides in sections 19 and 23 that:

Section 19

"1. Any person who unlawfully cultivates alkaloid plants or

hemp in order to obtain drugs,

any person who unlawfully manufactures, extracts,

transforms or processes drugs,

any person who unlawfully stocks, dispatches, transports,

imports or exports them or carries them in transit,

any person who unlawfully offers, distributes, sells,

deals in, procures, prescribes, markets or transfers them,

any person who unlawfully possesses, holds, purchases or

otherwise obtains them,

any person who takes steps to do so,

any person who finances unlawful traffic in drugs or

serves as intermediary for such financing, and

any person who publicly encourages the consumption of

drugs or publicly announces an opportunity for the

acquisition or consumption of drugs,

shall be liable, if he acts intentionally, to imprisonment

or a fine. In serious cases the penalty shall be

imprisonment for not less than one year, which may be

accompanied by a fine of up to one million francs.

2. A case is serious in particular if the person

committing the offence

(a) knows or must be aware that the offence relates to a

quantity of drugs which may endanger the health of a large

number of people;

(b) acts as a member of a gang formed for the purpose of

the unlawful dealing in drugs;

dealing as a business.

..."

Section 23

"1. If an official responsible for the enforcement of this

law intentionally commits an offence under sections 19 to

22, the penalty shall be increased as appropriate.

2. An official who for investigative purposes in person

or by the agency of another accepts an offer of drugs or

personally or by the agency of another takes possession of

drugs shall not be liable to punishment, even if he does

not disclose his identity and status."

Statement of the Federal Council to the Federal Parliament of

9 May 1973 relating to an amendment to the Federal Drugs Law

[and in particular to the introduction of an amended

section 23]

"...

The amendment introduced at the end of the sentence is

intended to give the court more latitude in determining the

sentence where an official responsible for the enforcement

of the Drugs Law deliberately contravenes that law.

The intention of the draft provisions, which follow on

from the present section 23, is to facilitate police

investigations in a field where they are particularly

difficult. This is a question of allowing the police to

enter the environment of dealers and sellers without

exposing themselves to criticism for having incited the

commission of offences or even having committed them

themselves. Illegal drug trafficking has often been cited

as a typical example of well-organised international gangs,

some of which have been broken up in recent months. The

police must be given adequate means for increasing the

effectiveness of their campaign against these gangs of

traffickers, as the Council of Europe asks us to do.

Article 32 of the Criminal Code (official duty) is not

sufficient to justify such actions. They must rest on a

legal basis in each particular case (see

Prof. Max Waiblinger, no. 1204, Fiches juridiques suisses,

faits justificatifs).

..."

25. The Government stated that section 23 subsection 2 was

regarded by cantonal courts and the Federal Court as permitting

only a passive attitude on the part of undercover agents, who

incurred criminal liability in the event of instigation or

provocation by them. Moreover, the use of such agents could be

ordered only in serious cases of organised crime relating to drug

trafficking.

The Federal Court has held that the section in question

derogates from provisions of cantonal law which may conflict

therewith:

"... it is not necessary for section 23 subsection 2 of the

Drugs Law to have as its purpose the regulation of a

procedural point, which the appellant contests; it is

sufficient that the cantonal legislation compromises the

anonymity which the federal legislature - whose intentions

are not in doubt here, if one considers the extracts from

the parliament's travaux préparatoires pertinently cited by

the cantonal authorities - intended to guarantee to persons

pursuing drug dealers.

The anonymity intended by the legislature has one purpose

only: to allow the investigator to continue his work

subsequently to the arrest of the person or persons whom he

has exposed and to allow him to carry on several cases at

once without the completion of one of them terminating his

activities in the others. If once an inquiry has been

completed the police officer has to disclose his identity

and explain in detail the role he has played, it is self-

evident that he will have to abandon any further work, as

his cover will have been blown in drug-dealing circles.

For this reason the observance of Articles 58 and 59 of the

cantonal Code of Criminal Procedure is in conflict with

section 23 subsection 2 of the Drugs Law ..." (Cassation

Division, judgment of 5 June 1986).

B. The Berne Code of Criminal Procedure

26. The Berne Code of Criminal Procedure makes provision for

various investigative measures:

Article 171b

"The investigating judge may order surveillance of a

suspect's postal, telephone and telegraphic communications

and have his mail seized if an offence whose seriousness or

peculiar features justify the interference or an offence

committed by means of the telephone is being investigated."

Article 171c

"1. The investigating judge shall within twenty-four hours

of his decision submit to the Indictments Chamber for

approval a duplicate copy of his order together with the

case-file and a short statement of reasons.

2. The order shall remain in force for three months at

most; the investigating judge may extend it for a maximum

of three months. The extension order is to be submitted to

the Indictments Chamber for approval with the case-file and

reasons ten days before the expiry of the period.

3. The investigating judge shall terminate the

surveillance as soon as it becomes unnecessary or the

period expires or if the order is withdrawn."

C. The Swiss Criminal Code

27. Articles 24 and 32 of the Swiss Criminal Code provide that:

Article 24

"1. A person who intentionally persuades another person to

commit an offence shall, if the offence is committed, be

liable to the penalty to which the person who commits the

offence is liable.

2. A person who attempts to persuade another person to

commit a serious offence shall be liable to the penalty

prescribed for the attempted commission of that offence."

Article 32

"An act which is ordered by law or by an official or

professional duty, or which is stated by law to be

permitted or not liable to punishment, shall not be an

offence."

PROCEEDINGS BEFORE THE COMMISSION

28. Mr Lüdi applied to the Commission on 30 September 1986. He

complained of the interception of his telephone conversations

combined with his manipulation by an undercover agent; he claimed

that this had infringed his right to respect for his private life

(Article 8) (art. 8). He also maintained that his conviction had

been based solely on the reports drawn up by the said agent, who

had not been summoned to appear as a witness; he alleged that his

right to a fair trial (Article 6 para. 1) (art. 6-1) had been

infringed, and also his right to examine or have examined

witnesses against him (Article 6 para. 3 (d)) (art. 6-3-d).

29. The Commission declared the application (no. 12433/86)

admissible on 10 May 1990. In its report dated

6 December 1990 (Article 31) (art. 31) it expressed the opinion

that there had been a violation of Article 8 (art. 8) (ten votes

to four) and of paragraph 3 (d) in conjunction with paragraph 1

of Article 6 (art. 6-3-d, art. 6-1) (thirteen votes to one).

The full text of the Commission's opinion and of the two

dissenting opinions contained in the report is reproduced as an

annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 238 of Series A of the Publications of the Court), but

a copy of the Commission's report is obtainable from the

registry.

_______________

GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT

30. The Government asked the Court to hold that "in the present

case, in so far as the applicant [could] be regarded as a

'victim', there [had] not been a violation of Article 8 (art. 8)

of the Convention or of paragraph 3 (d) in conjunction with

paragraph 1 of Article 6 (art. 6-3-d, art. 6-1)".

AS TO THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

31. The Government argued, as they had previously done before

the Commission, that the judgment of the Berne Court of Appeal

of 19 February 1987 (see paragraph 23 above) had had the result

that Mr Lüdi was no longer a victim for the purposes of Article

25 para. 1 (art. 25-1). The sentence had been reduced to what

the applicant, through his lawyer, had himself suggested at the

trial.

32. The applicant challenged this argument. The Commission did

likewise; it noted that the Court of Appeal's decision had been

based solely on the need to take into account the intervention

of the undercover agent and a psychiatric report showing

diminished responsibility on the part of Mr Lüdi at the time of

the offences (see paragraph 23 above).

33. Referring to its consistent case-law (see, as the most

recent authority, the B. v. France judgment of 26 March 1992,

Series A no. 232-C, p. 45, paras. 34-36), the Court considers

that it has jurisdiction to examine the objection, even though

this was disputed by the Commission in its principal submission.

34. The word "victim" in the context of Article 25 (art. 25)

denotes the person directly affected by the act or omission in

issue, the existence of a violation of the Convention being

conceivable even in the absence of prejudice; prejudice is

relevant only in the context of Article 50 (art. 50).

Consequently, mitigation of a sentence in principle deprives such

a person of his status as a victim only where the national

authorities have acknowledged, either expressly or in substance,

and then afforded redress for, the breach of the Convention (see

the Eckle v. Germany judgment of 15 July 1982, Series A no. 51,

pp. 29-32, paras. 64-70).

It follows from the decisions of the Swiss courts, in

particular the decisions of the Federal Court (see paragraphs 21

and 22 above), both that the applicant was directly affected by

the intervention of the undercover agent and that the national

authorities, far from acknowledging that this intervention

constituted a violation, expressly decided that it was in fact

compatible with the obligations under the Convention. The

objection must therefore be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

35. Mr Lüdi complained of a twofold breach of Article 8

(art. 8), which reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The first breach had been caused by the prolonged use of the

undercover agent Toni, who had made use of the personal contact

established by deceit to obtain information and influence the

conduct of the applicant; the second breach followed from the

fact that the agent had at the same time used technical devices

in order to gain access to the applicant's home and record

conversations which had been provoked by trickery and wrongly

incriminated him. In each case there had been an interference

with the exercise of his right to respect for his private life,

and the interferences had been unjustified, as they were not "in

accordance with the law".

36. In the Commission's opinion, the telephone interception was

not a breach of the Convention. However, the involvement of an

undercover agent changed the essentially passive nature of the

operation by introducing to the telephone interception a new

factor; the words intercepted resulted from the relationship

which the undercover agent had established with the suspect.

Accordingly, there was a separate interference with Mr Lüdi's

private life, requiring separate justification from the point of

view of paragraph 2 of Article 8 (art. 8-2). In short, Toni's

activities did not have a sufficient legal basis in the statutory

provisions in force.

37. The Government criticised this approach. In their view it

was necessary first to examine the permissibility in itself of

the use of the undercover agent, and then to examine whether the

use of telephone interception in addition thereto was such as to

make the use of the undercover agent - legitimate ex hypothesi -

incompatible with the requirements of Article 8 (art. 8).

38. The Court notes that, when opening a preliminary

investigation against the applicant on 15 March 1984, the

investigating judge of the Laufen District Court also ordered the

monitoring of his telephone communications. The Indictments

Chamber of the Court of Appeal of the Canton of Berne agreed to

this measure and later authorised its extension (see

paragraph 9 above).

39. There is no doubt that the telephone interception was an

interference with Mr Lüdi's private life and correspondence.

Such an interference is not in breach of the Convention if

it complies with the requirements of paragraph 2 of

Article 8 (art. 8-2). On this point the Court is in agreement

with the Commission. The measure in question was based on

Articles 171b and 171c of the Berne Code of Criminal Procedure,

which apply - as the Federal Court found (see paragraph 21 above)

- even to the preliminary stage of an investigation, where there

is good reason to believe that criminal offences are about to be

committed. Moreover, it was aimed at the "prevention of crime",

and the Court has no doubt whatever as to its necessity in a

democratic society.

40. On the other hand, the Court agrees with the Government that

in the present case the use of an undercover agent did not,

either alone or in combination with the telephone interception,

affect private life within the meaning of Article 8 (art. 8).

Toni's actions took place within the context of a deal

relating to 5 kg of cocaine. The cantonal authorities, who had

been warned by the German police, selected a sworn officer to

infiltrate what they thought was a large network of traffickers

intending to dispose of that quantity of drugs in Switzerland.

The aim of the operation was to arrest the dealers when the drugs

were handed over. Toni thereupon contacted the applicant, who

said that he was prepared to sell him 2 kg of cocaine, worth

200,000 Swiss francs (see paragraphs 9 and 13 above). Mr Lüdi

must therefore have been aware from then on that he was engaged

in a criminal act punishable under Article 19 of the Drugs Law

and that consequently he was running the risk of encountering an

undercover police officer whose task would in fact be to expose

him.

41. In short, there was no violation of Article 8 (art. 8).

III. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (d)

(art. 6-1, art. 6-3-d)

42. Mr Lüdi complained that he had not had a fair trial. He

relied on paragraphs 1 and 3 (d) of Article 6 (art. 6-1,

art. 6-3-d):

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal ...

...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(d) 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;

..."

The applicant maintained that his conviction had been based

above all upon the undercover agent's report and the transcripts

of his telephone conversations with the agent, although he had

not at any stage of the proceedings had an opportunity to

question him or to have him questioned. By their refusal to hear

Toni as a witness the Swiss courts had deprived the applicant of

the possibility of clarifying to what extent Toni's actions had

influenced and determined his behaviour, a question which

according to the Federal Court (see paragraph 21 above) was

nevertheless an essential one and was in dispute. The failure

to call Toni had prevented the courts from forming their own

opinion on the latter's credibility.

43. The admissibility of evidence is primarily governed by the

rules of domestic law, and as a general rule it is for the

national courts to assess the evidence before them. The Court's

task is to ascertain whether the proceedings, considered as a

whole, including the way in which the evidence was submitted,

were fair (see, as the most recent authority, the Vidal v.

Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33,

para. 33).

As the requirements of paragraph 3 of Article 6

(art. 6-3) represent particular aspects of the right to a fair

trial guaranteed in paragraph 1 (art. 6-1), the Court will

examine the complaint from the point of view of these two

provisions taken together.

44. Although Toni did not give evidence to the court in person,

he must for the purposes of Article 6 para. 3 (d) (art. 6-3-d)

be considered as a witness, a term which is to be given an

autonomous interpretation (same judgment, pp. 32-33, para. 33).

45. The Government set great store on two factors. Firstly, the

conviction of the applicant had not been based to a decisive

extent on Toni's reports, as the relevant courts had relied

primarily on the admissions of the applicant himself and the

statements of his co-defendants. Secondly, the concern to

preserve the undercover agent's anonymity derived from the need

to continue with the infiltration of drug-dealing circles and

protect the identity of informers.

46. In the Commission's opinion, with which the Court agrees,

Mr Lüdi first made admissions after he had been shown the

transcripts of the telephone interceptions, and he was deprived

throughout the proceedings of any means of checking them or

casting doubt on them.

47. The Court notes in addition that while the Swiss courts did

not reach their decisions solely on the basis of Toni's written

statements, these played a part in establishing the facts which

led to the conviction.

According to the Court's consistent case-law, all the

evidence must normally be produced in the presence of the accused

at a public hearing with a view to adversarial argument. There

are exceptions to this principle, but they must not infringe the

rights of the defence; as a general rule, paragraphs 3 (d) and

1 of Article 6 (art. 6-3-d, art. 6-1) require that the defendant

be given an adequate and proper opportunity to challenge and

question a witness against him, either when he makes his

statements or at a later stage (see the Asch v. Austria judgment

of 26 April 1991, Series A no. 203, p. 10, para. 27).

48. The Laufen District Court and the Berne Court of Appeal both

refused to call the undercover agent Toni as a witness, on the

grounds that his anonymity had to be preserved (see

paragraphs 16 and 18 above). The Federal Court held that "the

identity and the investigative methods of such agents are not

lightly to be given away in criminal proceedings" (see

paragraph 21 above).

49. The Court finds that the present case can be distinguished

from the Kostovski v. the Netherlands and Windisch v. Austria

cases (judgments of 20 November 1989 and 27 September 1990,

Series A nos. 166 and 186), where the impugned convictions were

based on statements made by anonymous witnesses. In this case

the person in question was a sworn police officer whose function

was known to the investigating judge. Moreover, the applicant

knew the said agent, if not by his real identity, at least by his

physical appearance, as a result of having met him on five

occasions (see paragraphs 10 and 12 above).

However, neither the investigating judge nor the trial

courts were able or willing to hear Toni as a witness and carry

out a confrontation which would enable Toni's statements to be

contrasted with Mr Lüdi's allegations; moreover, neither Mr Lüdi

nor his counsel had at any time during the proceedings an

opportunity to question him and cast doubt on his credibility.

Yet it would have been possible to do this in a way which took

into account the legitimate interest of the police authorities

in a drug trafficking case in preserving the anonymity of their

agent, so that they could protect him and also make use of him

again in the future.

50. In short, the rights of the defence were restricted to such

an extent that the applicant did not have a fair trial. There

was therefore a violation of paragraph 3 (d) in conjunction with

paragraph 1 of Article 6 (art. 6-3-d, art. 6-1).

IV. APPLICATION OF ARTICLE 50 (art. 50)

51. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict

with the obligations arising from the ... Convention, and

if the internal law of the said Party allows only partial

reparation to be made for the consequences of this decision

or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

52. Pursuant to this Article Mr Lüdi sought reimbursement of his

costs and expenses, namely 5,592 Swiss francs for the public law

appeal to the Federal Court, 13,168.20 for the proceedings before

the Commission and 11,420.40 for those before the Court,

including 3,000 in respect of Professor Krauss's fees.

The Government stated that they were prepared to reimburse

the sum - not claimed - of 688 Swiss francs for legal costs

incurred before the Federal Court, but considered the amounts

claimed to be excessive; a sum of 2,000 Swiss francs for the

proceedings before the Federal Court would be reasonable. As to

the proceedings before the Convention institutions, these should

be assessed on an overall basis in the light of the complexity

of the case, which was greater than in the majority of the cases

hitherto brought before them. The Government disputed the

reasonableness of the amounts claimed and the necessity of

consulting Professor Krauss, and stated that they were prepared

to pay 10,000 Swiss francs, should the Court find that there had

been a violation.

In view of the complexity of the case, the Delegate of the

Commission considered that the applicant's claims were justified.

53. Having regard to the above findings of the Court (see

paragraphs 41 and 50 above), the evidence at its disposal, the

observations of those appearing before it and its case-law in

this field, the Court considers it equitable to award

15,000 Swiss francs.

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the Government's preliminary

objection that the applicant is not a victim;

2. Holds unanimously that there has not been a violation of

Article 8 (art. 8);

3. Holds by eight votes to one that there has been a violation

of paragraph 1 in conjunction with paragraph 3 (d) of

Article 6 (art. 6-1, art. 6-3-d);

4. Holds unanimously that the respondent State is to pay the

applicant within three months 15,000 (fifteen thousand)

Swiss francs for costs and expenses;

5. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French and delivered at a public

hearing in the Human Rights Building, Strasbourg,

on 15 June 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the partly

dissenting opinion of Judge Matscher is annexed to this judgment.

Initialled: R.R.

Initialled: M.-A.E.

PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I regret that I do not feel able to agree with the opinion

of the majority of the Chamber in finding that there was a

failure to comply with the requirements of paragraphs 1 and 3 (d)

of Article 6 (art. 6-1, art. 6-3-d) taken together.

I am as concerned as the majority are for the rights of the

defence, which can be infringed as a result of the intervention

of "anonymous witnesses" who are then not called to testify

before the court, so that the defendant is deprived of his right

to challenge their (written) statements under Article 6 para.

3 (d) (art. 6-3-d), in cases where the court bases its finding

of guilt "to a decisive extent" on such statements. This was so

in the Kostovski and Windisch cases cited in the present

judgment.

But in the present case, unlike in the Kostovski and

Windisch cases, it can clearly be seen from the documents of the

proceedings before the Swiss courts that the trial court based

its decision essentially on the unchallenged admissions of Mr

Lüdi and the statements of his co-defendants. It is true that

the admissions were obtained by trickery through the intervention

of the undercover agent, Toni, but that does not mean that they

could not be used.

I also accept that the use of undercover agents or other

tricks used by police detectives, although entirely legitimate

(within certain limits), is not very "nice", but in the fight

against certain types of criminality - such as terrorism or

drugs -, which is one of the most important tasks of the police

in the interests of society, this is often the only method which

makes it possible to identify those who are guilty and break up

criminal gangs, who for their part also use all the methods

available to them. So anyone who knowingly takes part in

organised crime runs the risk of falling into a trap.

Of course even a criminal who is caught by one of the

methods just described has the right to a fair trial, one of the

essential elements of which is the opportunity to put forward

before the court, in a reasonable manner, all the arguments of

the defence. But if he has substantially admitted the acts he

is accused of, the evaluation of his admissions is part of the

free assessment of the evidence which is primarily the duty and

the right of the trial court. In such circumstances the

dismissal by the court of the application to call the undercover

agent as an additional witness is not open to criticism by the

European Court, especially as the appearance of the witness in

question would have made no contribution at all to the better

elucidation of the facts subsequently challenged by the

defendant.

This makes it unnecessary for me to speculate as to the

suggestions - incidentally rather unrealistic ones, in my opinion

- that it might have been possible for the Swiss courts to hear

the testimony of the undercover agent in a way which avoided

disclosing his identity.

I therefore conclude that there was no violation of the

rights of the defence in the present case.