The Limited Times

Now you can see non-English news...

Judgment of the European Court of Human Rights: seduced by the informant to act

2020-10-25T18:05:46.140Z


The police break up a drug smuggling operation, but an undercover agent proves to be the instigator of the coup in court. That had consequences before the European Court of Human Rights.


Icon: enlarge

Smuggled cocaine packets (symbol image)

Photo: Axel Heimken / dpa

The police hailed the find as "one of the greatest successes in combating international drug smuggling in recent years".

Namik A., the operator of a Berlin café, was caught in Bremerhaven in August 2011 with almost 100 kilograms of cocaine.

But before the Berlin Regional Court, the investigators' apparent triumph turned into a debacle.

It turned out that Namik A. had only been seduced into the act by an informant.

In 2012, the Berlin Regional Court found in its judgment against Namik A. and four co-defendants that the proceedings "had a serious flaw in the form of a provocation contrary to the rule of law".

In order to compensate for the blemish, the Chamber granted Namik A. a considerable penalty.

Namik A., 51, was sentenced to four years and five months.

The defense went against the conviction, brought the case to the Federal Court of Justice and the Federal Constitutional Court without success.

Now the European Court of Human Rights (ECHR) in Strasbourg has condemned the Federal Republic of Germany for violating the right to a fair trial.

The Strasbourg judges come to the conclusion that the proceedings against Namik A. violated the European Convention on Human Rights.

"After the current decision, Mr. A. should never have been convicted," said defense attorney Stefan Conen in an interview with SPIEGEL.

The unusual guest was an undercover agent

Namik A. did not live to see the Strasbourg judgment, he died in June 2015.

Conen brought the complaint to the European Court of Justice on behalf of his widow.

It all started in September 2009. At that time, an undercover agent, who is still unknown to this day, claimed that Namik A. was trading in heroin on a large scale.

The investigation was unsuccessful.

But the investigators did not give up.

According to the findings of the Berlin Regional Court, Namik A. suddenly had a new guest in his café in Berlin-Charlottenburg from November 2009.

He called himself Moharem.

The name was wrong.

The guest was an undercover agent from the Berlin State Criminal Police Office.

Years later, the men in Namik A's Café remembered the new regular with the thick wad of money.

Namik A. is said to have said to Moharem that "at least one person here in the café is doing great."

Then both would have laughed.

"Dirty stuff heroin"

In February 2010 Moharem told Namik A. that he was a drug dealer and knew a corrupt dock worker in Bremerhaven who could smuggle heroin past customs.

Namik A. reacted dismissively.

He does not want to have anything to do with the "dirty stuff heroin".

So it is in the judgment of the regional court.

Moharem turned.

Cocaine could also be smuggled through Bremerhaven.

Namik A. showed little interest, Moharem didn't give up.

In May 2010 he told Namik A. that he had stood up especially for him with the dockworker.

Bremerhaven is a completely safe smuggling route.

At some point Namik A. no longer resisted the temptation.

Moharem and Namik A. drove to Bremerhaven.

Namik A. met Klaus, the supposedly corrupt dockworker who was actually an undercover agent.

According to the court, Klaus introduced himself "as an omnipotence in the port".

He can smuggle entire containers past customs.

During the trial, the undercover agent remembered that Namik A. had appeared at the port in green dungarees.

He looked like a stray forest worker, amused the officer.

"Of course, the thought of earning a lot of money with Moharem's help was very tempting for me", Namik A. explained to the Berlin Regional Court.

His lawyer read his words.

It seemed so easy to him.

Namik A. admitted that he had traded in cars every now and then.

Also that people were gambling for money in his café.

"But there were no drug deals in my café. I would not have tolerated that."

Until Moharem came.

When Namik A. couldn't resist the temptation anymore, he tried to get cocaine somehow.

He only succeeded after a year.

In the meantime, Moharem and Klaus had put "considerable pressure" on him to finally get it done, according to the Berlin judgment.

In August 2011, 97.17 kilograms of cocaine from South America finally arrived in Bremerhaven.

Bonus for the hardworking undercover agent

It became known in court that Moharem had been guaranteed a bonus for his V-Mann work if he was able to prove that Namik A. had committed a crime.

The greater the amount of drugs, the higher the contingency fee.

Lawyer Marcel Kelz, who defended Namik A. together with Stefan Conen before the regional court, sees such a premium payment for informants as a "state incentive to provoke offenses".

He also says: "It is unbearable when the state finances illegal behavior."

The court has not been able to clarify exactly how high the premium for Moharem was.

In the course of the process, the Berlin Regional Court found that "the act was largely controlled by the state".

The presiding judge spoke of a behavior of the investigators that was "completely intolerable".

The original reference that Namik A. was trading in heroin was never - the judge emphasized it several times - never confirmed.

It was legitimate to investigate the initial suspicion and smuggle an undercover agent into the café.

"What is not permissible, however, is to provoke a person to do something that is completely unsuspicious of these acts."

The Federal Court of Justice rejected the appeal.

A constitutional complaint also failed.

The district court had sufficiently compensated for the illegal act of provocation through the reduction in penalties and a restrictive use of evidence.

In its judgment, the chamber relied primarily on the accused's confessions, not on the information provided by the undercover agent.

"The cat is biting its tail," says defender Stefan Conen.

"Without a confession, the illegal provocation and its extent would not have been known at all."

The unlawful behavior of the state led to a "compulsion to confess".

The European Court of Human Rights takes a similar view.

In their judgment of October 15, 2020, the Strasbourg judges ruled that the regional court should not have used the confessions either.

In the end, Namik A. had no other option than to confess to the crime in order to uncover the true extent of the incitement.

The European Court of Justice comes to the conclusion that the proceedings against Namik A. were generally unfair.

Hakki S., a friend of Namik A., was sentenced to three years and seven months in prison by the Berlin Regional Court for aiding and abetting.

According to the judges, it was only because of the supposedly safe import route via Bremerhaven that he was tempted to help Namik A. get the drugs.

The two went to Holland, where they eventually met people who really had contacts in South America.

Hakki S. had never been noticed because of drug deals either.

Defense attorney Conen had waived an application for compensation after Namik A.'s death.

For Hakki S., however, his lawyer had applied for compensation for his years in prison.

The European Court of Justice has now sentenced the Federal Republic to pay Hakki S. 18,000 euros.

A third man who was supposed to bring the cocaine from Bremerhaven to Berlin failed with his complaint in Strasbourg.

"The Ministry of Justice will carefully evaluate the judgment"

What follows from the condemnation of Germany by the European Court of Human Rights?

A spokesman for the Federal Ministry of Justice (BMJV) said on request: "The Ministry of Justice will carefully evaluate the judgment and decide on this basis whether there is a need for action under German law."

The spokesman refers to another decision of the BGH from 2015 (Az. 2 StR 97/14), which came after the BGH decision in the Namik A. case.

In this case, another BGH senate overturned a judgment by the Bonn Regional Court.

In this case, the unlawful act of provocation by undercover agents was not compensated for by a reduction in the sentence, as was customary before, but was viewed as a procedural obstacle, which led to the proceedings being terminated.

It remains to be seen whether other BGH senates will follow this ruling.

In February 2020, the Federal Ministry of Justice presented an opinion from the Great Criminal Law Commission of the German Association of Judges on the subject of "Confidants and criminal provocations".

It contains a legislative proposal: "In the event of a provocation contrary to the rule of law, the court can at its discretion mitigate the penalty (Section 49 (2) of the Criminal Code) or waive the penalty."

Defense attorney Conen does not go far enough with this proposal.

He says: "The current decision of the European Court of Human Rights makes it clear that a case must be discontinued if a provocation contrary to the rule of law is found."

Icon: The mirror

Source: spiegel

All life articles on 2020-10-25

You may like

News/Politics 2024-02-12T10:15:20.267Z

Trends 24h

Latest

© Communities 2019 - Privacy

The information on this site is from external sources that are not under our control.
The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.