ATIK v. GERMANY
Inadmissible
Ireneu Cabral Barreto
The applicant, Huseyin Atik, is a Turkish national, who was born in 1957 and lives in Hamburg. He was represented before the Court by Mr Gerhard Strate and Mr Klaus Ulrich Ventzke, lawyers practising in Hamburg. On 6 October 1995 the Hamburg Regional Court (Landgericht) convicted the applicant of drug trafficking and sentenced him to nine years' imprisonment. Following his conviction he was erving his sentence. As from 1996, he was continuously contacted by one Y., an undercover agent acting with the authorisation of the Hamburg police, who passed himself off as a potential purchaser of a larger amount of cocaine. At the applicant's request, the undercover agent contacted the applicant's counsel with a view to applying for the reopening of the criminal proceedings. The undercover agent met the counsel several times accompanied by other persons, however at one occasion – contrary to the instructions given by the Hamburg police – on his own initiative in the absence of other persons. The last visit took place on 3 November 1998. Thereafter the applicant informed the undercover agent that his former cell-mate T. could arrange for the delivery of a large quantity of cocaine for a price of 55,000 German Marks (DEM) per kilogram. After consulting the applicant, T. met the undercover agent in his flat on 4 November 1998 in order to hand over almost 12 kg of cocaine. While carrying out the transaction, he was arrested by the police. By a judgment of 17 June 1999, the Hamburg Regional Court convicted the applicant of drug trafficking and sentenced him to four years' and six months' imprisonment. The applicant lodged an appeal on points of law against this judgment. He complained in particular that the Regional Court had not discontinued the proceedings having regard to the circumstances in which the undercover agent had contacted his lawyer. On 12 January 2000, the Federal Court of Justice (Bundesgerichtshof) rejected the applicant's appeal on points of law. It expressed serious concern about the involvement of the undercover agent in the relationship between the defence counsel and the applicant, but found that in the present case there was nothing to show that during these meetings evidence had been obtained to the applicant's detriment. Moreover, the Hamburg Regional Court had sufficiently taken into account the intervention of the undercover agent when fixing the sentence. By a decision of 7 June 2000, notified to the applicant's counsel on 16 June 2000, the Federal Constitutional Court (Bundesverfassungsgericht), sitting in a panel of three judges, declined to entertain the applicant's constitutional complaint. It found that it did not raise any fundamental constitutional issues. Furthermore it was not relevant for the protection of the applicant's basic rights since it had no prospects of success. The constitutional complaint was inadmissible as the applicant failed to substantiate the alleged violation of his constitutional rights and, consequently, did not meet the formal requirements under Articles 23 § 1 and 92 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz). Moreover, the Federal Constitutional Court found that there was nothing to suggest that the applicant's basic or similar rights had been breached. The undercover agent had met the applicant's lawyer for the last time on 3 November 1998 in connection with the request for a retrial. On 4 November 1998 the drug deal had been carried out. There was no indication and it had not been alleged that after that date the undercover agent had performed further activities, in particular contacted the applicant's lawyer. Therefore at no time the applicant's right to an effective exercise of his defence rights had been infringed.