The fact that the crime was incited in a way that violated the rule of law does not necessarily preclude a conviction

Press Release No. 8/2015 of 11 February 2015

Order of 18 December 2014
2 BvR 209/14, 2 BvR 240/14, 2 BvR 262/14

As a rule, even if the crime was incited in a way that violated the rule of law, a conviction remains possible if court proceedings take due account of the incitement. This holds true even taking into account the jurisprudence of the European Court of Human Rights (ECtHR). Only in extremely exceptional cases may a discontinuance of proceedings be derived from the rule of law since the rule of law also protects the public interest in a prosecution that serves material justice. Such was the decision today of the Second Chamber of the Second Senate of the Federal Constitutional Court. The Chamber rejected three constitutional complaints because the criminal law courts had adequately compensated for the incitement that violated the rule of law by reducing the sentences by a specifically quantified amount and by restrictively relying on the available evidence. In doing so, they determined in a permissible way that the cases at hand were not extremely exceptional.

Facts of the Case and Procedural History:

The three complainants challenge their conviction to several years in prison for drug-related offences. In its judgment, the Berlin Regional Court (Landgericht) found that the crime had been incited in a way that violated the rule of law as well as Art. 6 sec. 1 sentence 1 of the European Convention on Human Rights (ECHR). During the course of the investigation, a police informant, over a long period of building a cover story for himself and supported by an undercover investigator, had influenced the first complainant by offering immense rewards and by building pressure. This allegedly resulted in the police facilitating a crime that considerably exceeded the one the complainant was suspected of having already committed. The Regional Court took into account this incitement, which violated the rule of law, in its sentencing. In doing so, it reduced the first complainant’s sentence by at least five years and seven months and sentenced him to four years and five months of imprisonment. The third complainant’s sentence was reduced by at least three years and five months resulting in a sentence of three years and seven months of imprisonment. In sentencing the second complainant, the Regional Court only took general mitigating account of the incitement without giving a specific number, since in his case it did not find a violation of the ECHR. Thus, it sentenced him to four years of imprisonment. The complainants’ appeal on points of law was rejected by the Federal Court of Justice (Bundesgerichtshof).

Key Considerations of the Chamber:

1. The challenged decisions do not violate the complainants’ right to a fair trial under Art. 2 sec. 1 in conjunction with Art. 20 sec. 3 of the Basic Law (Grundgesetz – GG).

a) The task of shaping the right to a fair trial pertains primarily to the legislature and subsequently to the courts when  interpreting and implementing the law. The right to a fair trial is violated only if an overall view of the procedural law – including the way it is interpreted and implemented by the courts – reveals that conclusions compelling under the rule of law were not reached or that procedural elements required under the rule of law were relinquished. This overall view must also take into account the requirements of a functioning criminal justice system.

b) The criminal courts adequately took into account the fact that the crime was incited in a way that violated the rule of law when they determined the individual sentences; they were not required to discontinue the proceedings.

aa) To date, the jurisprudence of the Chambers of the Federal Constitutional Court has left unanswered the question of whether participation of a police informant in convicting a criminal may at all prevent the realisation of the state’s right to punish the person concerned. Nor does the present case require this question to be answered. Even if one should consider such a prevention to be generally possible, it could only in extremely exceptional cases be derived from the rule of law, since the rule of law protects not only the interests of the accused but also the public interest in a prosecution that serves material justice.

bb) The case at hand, however, appears likely to be such an extremely exceptional case. The police informant’s pressure on the first complainant as well as the supportive role played by state authorities during the preparation of the crime illustrate that the public prosecutor’s office – being the “master of the investigation” – has failed to exercise its oversight over the police. This failure must be taken into account during the further course of the proceedings. Considering the scope of the misconduct as well as the corresponding illegal pressure put on the complainant during the investigation, it would not have been unreasonable to assume an extremely exceptional case.

cc) Nevertheless, the question can remain unanswered. Based on the trial court’s findings regarding the details of the incitement as well as of the crime itself, the regular courts were permitted under the Constitution to not assume an extremely exceptional case. The Chamber does not need to decide whether this would also hold true had the incited complainant not already been a suspect. However, it appears questionable whether in that case a state right to punish could be maintained in view of material justice and against the accused’s legitimate interests.

The crime in the case at hand, however, was not entirely instigated by state authorities. From the outset, there were factual indications that warranted opening an investigation against the complainant for violations of the Narcotics Act (Betäubungsmittelgesetz). Despite the continued pressure by the police informant, the complainant remained largely free in his decisions. In particular, the informant neither threatened the complainant nor did he exploit any particular situation of distress on the part of the complainant. Considering this, one cannot assume that the complainant became a mere object of state action. This holds all the more true for the other two complainants who were pressured indirectly at most.

2. Even in light of the ECtHR’s jurisprudence, there is no violation of the right to a fair trial, since the violation of Art. 6 sec. 1 sentence 1 ECHR that occurred during the investigation was adequately compensated for by the regular courts.

a) When it comes to inciting conduct on the part of investigative authorities, the ECtHR’s jurisprudence follows a different dogmatic path; it focuses on the permissibility of conducting a trial at all as well as on the admissibility of evidence. In this context, the ECtHR held that evidence obtained by police incitement is not rendered admissible by a public interest. The Chamber agrees with the ECtHR insofar as the state may not incite innocent citizens to commit crimes; the investigative authorities are tasked to prosecute crimes, not to cause them. It does not follow, however, that the national legal system is obliged to follow the ECtHR’s dogmatic concept. As long as the substantive requirements for a fair trial under Art. 6 sec. 1 sentence 1 ECHR are met, the ECtHR lets the national courts decide on how to implement these requirements within their respective national criminal justice systems.

b) The Chamber does not need to and indeed cannot decide whether the solution of adjusting the sentence will meet the ECtHR’s standards in every individual case. At least in the way it was applied in the case at hand, however, it does not violate the constitutional principle of a fair trial – even in view of the requirements set by Art. 6 sec. 1 sentence 1 ECHR.

This conclusion is supported not only by the express finding and acknowledgment of a violation of Art. 6 sec. 1 sentence 1 ECHR and by the considerable and specifically quantified reduction in sentencing, but also by the way the Regional Court treated the evidence. It relied primarily on confessions made by the three complainants as well as by two other defendants. The descriptions of the crime that were contained in these five confessions – to the extent that the respective defendants had knowledge of the relevant facts – were largely identical. To the extent that the descriptions did not match, the Regional Court only held those facts against the individual defendants that they had confessed to. In particular, the Regional Court did not rely on further evidence to make findings against the defendants that exceeded their respective confessions. Even without the testimony by the police informant and the investigators, the Regional Court found the confessions as such and in the way they matched to be sufficiently credible. Therefore, the way the Regional Court treated the evidence comes close to the incriminating evidence provided by the police informer and the undercover investigator being expressly inadmissible.