HAAS v. GERMANY
Inadmissible
Mark Villiger
The applicant, Monika Haas, is a German national, who was born in 1948 and lives in Frankfurt/Main, Germany. She is represented before the Court by Mr Gerhard Strate and Mr Klaus-Ulrich Ventzke, two lawyers practising in Hamburg. The respondent Government are represented by Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In the early seventies, the Red Army Fraction (Rote Armee Fraktion - “RAF”), a left-wing extremist terrorist movement, was founded in Germany. Its members intended to destroy the public order of the Federal Republic of Germany by terrorist action, in particular murder, attacks with explosives and the taking of hostages, in order to bring about a radical change of German society. Following a series of attacks in 1972, several “RAF” members were arrested. Three founding members, Andreas Baader, Gudrun Ensslin and Jan-Carl Raspe, were sentenced to life imprisonment in April 1977. As early as 1975, the “RAF” had launched terrorist attacks for the liberation of detained members. In April 1975, hostages were taken at the German Embassy in Stockholm. In April 1977, the Federal Public Prosecutor (Generalbundesanwalt) Siegfried Buback was shot. In July 1977, an attempt to kidnap a member of the management of the Dresdener Bank, Jürgen Ponto, failed and he was shot. In August 1977, “RAF” members tried to attack the building of the Federal Public Prosecutor’s Office. On 5 September 1977 members of the “RAF” kidnapped Dr HannsMartin Schleyer, a German industrialist and President of the German Employers’ Association, in Cologne; his driver and three policemen were killed immediately. On 13 October 1977 four members of a “Special Command” (“PFLPSC”) of the Popular Front for the Liberation of Palestine (“PFLP”) with headquarters first in Damascus and later in Lebanon, hijacked the Lufthansa aircraft Landshut on a flight from Palma de Mallorca to Frankfurt/Main. The hijackers threatened to kill their 82 hostages and to blow up the aircraft if their demands for the liberation of eleven “RAF” members detained in Germany and two “PFLP” members imprisoned in Turkey were not met. They forced the pilot to change destination and the plane subsequently landed in Rome, Cyprus, Bahrain, Dubai and Aden, where the leader of the hijackers shot the captain of the aircraft for alleged disobedience. The aircraft then left for Mogadishu, Somalia, on 17 October 1977. On 18 October 1977, shortly after midnight, the hostages were liberated by members of a special unit (“GSG 9”) of the German Federal Border Police. Three of the hijackers were killed and the fourth, a woman, was seriously injured. The terrorists shot at two members of the “GSG 9” and seriously injured them. Two hostages were injured by a hijacker. All remaining hostages, who had been subjected to continued threats to their lives throughout the kidnapping, survived. Following the failure of the hijacking, Mr Schleyer was killed by “RAF” members. The three “RAF” founding members detained in StuttgartStammheim prison committed suicide in the morning of 18 October 1977. In April 1992 the “RAF” announced in a written declaration that they would suspend the attacks on representatives of the State and the economy. In 1996 the surviving fourth hijacker was convicted of, inter alia, murder, the taking of hostages, kidnapping, attack on air traffic and attempted murder. She was sentenced to twelve years’ imprisonment. On 20 March 1992, the applicant was arrested by the German police following an arrest warrant issued by the Investigating Judge of the Federal Court of Justice on that same day. She was suspected, in connection with the 1977 hijacking of the Lufthansa aircraft Landshut, of having acted as an accomplice to an attack on air traffic and the taking of hostages. Furthermore, she was suspected of having aided and abetted the kidnapping of Mr Schleyer. The applicant was taken into detention on remand. She was released on 5 May 1992, when the arrest warrant was quashed. Following further investigations, the applicant was again arrested on 7 November 1994. In the criminal proceedings against her, the applicant was assisted by several defence counsel. On 16 May 1995, the General Public Prosecutor at the Federal Court of Justice preferred the indictment against the applicant, charging her, in connection with the Landshut hijacking, of having acted as an accomplice of acts of kidnapping, attack on air traffic, extortion, murder and attempted murder, and, in connection with the kidnapping of Mr Schleyer, of having aided and abetted kidnapping, extortion and homicide. On 16 November 1998, the Frankfurt/Main Court of Appeal, following numerous hearings between 9 May 1996 and 16 November 1998, convicted the applicant of having aided and abetted an attack on air traffic, the taking of hostages, extortionate kidnapping and attempted murder on two counts in connection with the Landshut hijacking. As regards the kidnapping of Mr Schleyer, the Court of Appeal found that the applicant’s intent to aid and abet this offence had not been proved. She was sentenced to five years’ imprisonment. In its long and detailed decision, the Court of Appeal, having regard to the applicant’s personal background, noted in particular that the applicant had sympathised with the “RAF” and had participated in shooting trainings in one of the military training camps of the “PFLP” in Aden, South Yemen. The applicant had confirmed that she was known as “Amal” there, had married a leading “PFLP” member under Yemenite law and had lived there between 1976 and 1980, together with their son, born in 1967, and their daughter, born on 17 July 1977. The Court of Appeal found that on 25 September 1977 two “RAF” members, witnesses Mr B. and Ms M., had taken a flight to Baghdad to meet members of the “PFLP-SC” in order to prepare the Landshut hijacking. They had accepted the offer of the “PFLP-SC” to support their terrorist activities for the liberation of “RAF” members by hijacking a German aircraft. The leader of the “PFLP-SC” had then instructed the applicant and Said S., a “PFLP” member, to bring the weapons and the explosives needed for the hijacking to Palma de Mallorca. The applicant had received the weapons and the explosives in Algiers on 7 October 1977 or shortly before. On 7 October 1977, she had taken a plane, together with Said S. and her daughter, to Palma de Mallorca, transporting the weapons and the explosives in her cabin baggage. She had then handed over the material to a Palestinian called Jamal. The Court of Appeal based its findings as to the applicant’s participation in the offences essentially on the evidence given by Said S. The court observed that Said S. could not be questioned at the trial, as he was serving a prison sentence in Beirut. The Lebanese authorities had refused to transfer him to Germany for the purposes of the proceedings, even though the Investigating Judge at the Federal Court of Justice had given the assurance of safe conduct (sicheres Geleit). The Court of Appeal therefore relied on the depositions of the witnesses Mr W. and Mr S., officers of the Federal Office of Criminal Investigations. They had been present together with an interpreter when Said S. had been questioned by the Lebanese police on 5, 6 and 10 March 1997 in the course of preliminary investigations of the German prosecution authorities against himself and the applicant’s husband. According to Mr W. and Mr S., Said S. had initially denied having participated in the Landshut hijacking or having any knowledge thereof, as well as having been engaged in any other terrorist acts of the “PFLP”. On his first day of questioning, Said S. had been very nervous and had given the impression that he was not telling the truth. During the second questioning, he had asked for some days of reflection. At his third interrogation, Said S., who had appeared relieved and calm, had announced that he would tell the full truth. He had admitted that he had been a member of the “PFLP” since 1975. Furthermore, he had stated that in 1977, two weeks before the Landshut hijacking, the leader of the “PFLP-SC” had instructed him to travel to Algeria together with a West German woman called “Amal” in order to transport weapons from Algiers to Palma de Mallorca. In Algiers, “Amal” had received weapons and explosives, hidden in a radio and in candy boxes. These weapons had been destined for hijacking an aircraft. About one week before the Landshut hijacking, he had travelled with “Amal”, accompanied by her daughter, from Algiers to Palma de Mallorca with an Iranian passport issued to “Kamal Sarvati”. “Amal” had transported the weapons in her cabin baggage. In Mallorca she had handed this material over to a Palestinian called “Jamal”. They returned by plane to Baghdad via Paris the following day. Regarding the use in evidence of Said S.’s statements, the Court of Appeal considered that, on the basis of the clear and concurring statements of witnesses W. and S. and the letters rogatory issued by the General Public Prosecutor, it was established that Said S. had been informed by the Lebanese police officers about his rights as an accused under German law, namely to remain silent and to request the taking of specific evidence for his defence. The Court of Appeal further found that no unlawful means had been used to obtain Said S.’s statements. According to witnesses W. and S., the Lebanese authorities had no interest of their own in these investigations, and there had been nothing to suggest that Said S. had been ill-treated or threatened or that promises had been made. Moreover, there was no indication that the statements made by Said S. had been the result of leading questions. Recalling that a cautious approach was required in assessing statements of a witness who had not been heard at the trial and to whom the parties to the proceedings could not put any questions, the Court of Appeal found that Said S.’s statements as to “Amal’s”, i.e. the applicant’s, participation in the hijacking were credible. In this respect, the Court of Appeal took into account that the witnesses W. and S. had given an account of Said. S.’s demeanour during the interrogations under letters rogatory and had been able to put questions to him, and that Said S. was not an anonymous witness. Furthermore, the Court of Appeal found that witness Said S., when heard again under letters rogatory by the Beirut Regional Court in the course of this trial on 27 October 1997, had confirmed having travelled from Algier to Palma de Mallorca in October 1977 together with a German woman. He had, however, denied that they had transported any weapons. The court considered that the records of his questioning could be read out at the trial as the witness, who was still serving a prison sentence in Lebanon, was out of reach. The fact that the public prosecutor, the applicant and her defence counsel had had no opportunity to attend the questioning did not exclude the use in evidence of Said S.’s statements. According to the Court of Appeal, the foreign procedural rules had to be observed in the first place, which in the instant case did not require the presence of the parties to the present proceedings at the questioning. In its letters rogatory, the Court of Appeal had informed the Beirut Regional Court that under German law, the parties to the proceedings were entitled to attend such a questioning and had invited it to notify it of the date of the questioning, should such presence be possible under Lebanese law. Nevertheless, bearing in mind the limitations on the rights of the defence, the Court of Appeal decided not to consider these statements as evidence which could stand on its own. It noted, however, that Said S. had no reason wrongfully to incriminate both himself and the applicant. The Court of Appeal argued that the discrepancies between Said S.’s statements at this hearing as opposed to his submission at his hearing in March 1997 had occurred because the Lebanese court had not sufficiently confronted the applicant with his earlier statements. This was attributable to the fact that the parties to the proceedings had not been allowed to attend this questioning. However, a further hearing of Said S. under letters rogatory, as requested by the applicant, or further investigations to obtain evidence as to the circumstances in which Said S.’s statements had been made were not called for. Only Said S.’s hearing in person at the trial would have been suitable to rebut the evidence already obtained at that stage. Furthermore, the Court of Appeal found that other important evidence confirmed Said S.’s statements. Thus witness P., a high-ranking official of the German Intelligence Service, had indicated that already on 22 November 1977 the Intelligence Service had been notified by an informer that three persons using the names “Kamal Sarvati”, “Cornelia Christina Trubendorffer” and “Nicole”, born on 17 July 1977 (the date of birth of the applicant’s daughter), had travelled from Algiers to Palma de Mallorca on 7 October 1977. The two adults were associated with terrorist organisations. P. had refused to disclose the identity of the informer or the documents concerned. The Court of Appeal noted that its requests addressed to the Intelligence Service and the Federal Ministry for the Interior for disclosure of these sources and documents had been refused for good reasons, namely, the necessity to protect life and limb of persons who were not within German jurisdiction. It accepted the authorities’ argument that notably the applicant’s husband, a former leading member of the “PFLP” whom the applicant had kept informed about the proceedings against her, was still capable of organising assassinations of or acts of revenge against witnesses incriminating the applicant. Moreover, witness G., a high-ranking official of the Federal Office for Criminal Investigations, had stated that in 1980 a reliable informer had identified the applicant as “Amal” on photographs. Another informer had notified the Federal Office for Criminal Investigations that a woman called “Amal” had travelled with a “PFLP” member and a baby from Algiers to Palma de Mallorca, and had also known the false names and the numbers and origin of the passports used by them. Subsequent investigations had shown that the passport carried by “Amal”, issued to “Cornelia Vermaesen, born Trubendorffer”, had been stolen in the Netherlands and that the passport used by Said S. was a fake of the same type as the passports later used by the hijackers. The informer in question had identified the applicant on photographs as “Amal” and as the person transporting the weapons and explosives. Witness G. had stated that he was not entitled to disclose the identity of the informers. The Court of Appeal’s requests to the Office for Criminal Investigations and the Federal Ministry for the Interior for disclosure of the identity of its informers equally remained unsuccessful. Both authorities invoked the need to protect live and limb of their informers for the same reasons as those given with respect to the informer whose statements were reported by witness P. The Court of Appeal noted that the statements made by Said S. and the evidence supplied by anonymous informers were further corroborated by the results of investigations into the passenger lists of the flights from Algiers to Palma de Mallorca on 7 October and from Palma de Mallorca to Paris-Orly on 8 October 1977. These lists contained references to the false names used by Said S., the applicant and her daughter. The Court of Appeal equally took into account evidence of the applicant’s and Said S.’s stay at a hotel in Palma de Mallorca. It had regard to bills bearing the names “Vermaesen” and “Kamal”, and to explanations given by the managing director of the hotel who had indicated that one of his employees had remembered that a man with an Arab name accompanied by a European woman and a small child had stayed at the hotel at the relevant time. As far as the number and types of weapons and explosives used were concerned, the Court of Appeal had heard several witnesses and had regard to photographs contained in the file, showing inter alia the radio serving as a hiding place for the weapons, which had been found in the aircraft. Moreover, the Court of Appeal took into account the applicant’s own statement that Said S. had been a member of the “PFLP” and had been on Mallorca some days prior to the Landshut hijacking together with the surviving hijacker. As to the applicant’s defence, the Court of Appeal found that there was nothing to show that she had not left Aden at the relevant time, in particular that her young child had been seriously ill. Furthermore, witness B., the “RAF” member who had met “PFLP” members in Baghdad at the end of September and in the beginning of October 1977, had stated that he had seen the applicant in Baghdad. The Court of Appeal, in concluding that B.’s depositions were credible, had notably regard to the consistency of his statements, the detailed account of his meeting with the applicant and the fact that as a former “RAF” member, he did not have reasons to incriminate the applicant wrongfully. The statements made by Ms S. and Ms M., two “RAF” members, and by the applicant’s son to the effect that they had not seen the applicant leaving Aden and being in Baghdad did not refute B.’s depositions. In the Court of Appeal’s view, the applicant had strong motives to participate in the hijacking, especially since her husband had played a leading role in organising it. Moreover, since 1974 she had assisted, as a “RAF” sympathiser, the eleven “RAF” members detained in Germany. On 11 February 2000, the Federal Court of Justice, following an oral hearing, dismissed the applicant’s appeal on points of law. It noted that the Court of Appeal had found the applicant’s participation in the offences in question to be established by the statements made by Said S. in the course of his interrogation by the Lebanese police in the presence of German police officers. Said S. had confirmed in substance these depositions when he was questioned under letters rogatory by the Beirut Regional Court. His statements had been confirmed by numerous other items of evidence, such as material obtained from informers, passenger lists and hotel bills, as well as statements made by the former “RAF” member B. As regards the applicant’s complaint about the use in evidence of the oral testimony of witnesses P. and G., the Federal Court of Justice found that there was no breach of Article 6 §§ 1 and 3 (d) of the Convention due to the fact that the informers themselves could not be questioned. It considered that the Court of Appeal had correctly taken a cautious approach in assessing this evidence and had merely considered it as corroborating the statements of witness Said S. and other items of evidence. Moreover, referring to the case-law of the European Court of Human Rights (in particular van Mechelen v. the Netherlands, judgment of 23 April 1997), the Federal Court of Justice considered that, unlike the said case, the present case did not concern statements made by anonymous police officers. The informers who had remained anonymous were obviously persons operating abroad in cooperation with the German authorities to combat international terrorism. These persons and their families were particularly exposed to the risk of acts of revenge by terrorist organisations and would be generally endangered if identified. In any event, their depositions had not been the basis for the applicant’s conviction, but merely corroborating evidence. The Court of Appeal’s cautious approach in assessing the evidence obtained from anonymous informers had counterbalanced the limitations on the rights of the defence. In particular, the Court of Appeal had not only examined whether the authorities’ refusal to disclose the informers’ identities had been arbitrary or obviously erroneous, but had also reached the conclusion that in substance the authorities’ decisions had been reasonable and convincing. According to the Federal Court of Justice, the applicant’s complaint that the Court of Appeal had examined witness B. on oath was well-founded. In this respect, it noted that there was no indication in the trial record or in the reasoning of the judgment that the Court of Appeal had considered that, on account of his possible participation in the offences concerned, Mr B. should not have been administered an oath (Section 60 no. 2 of the Code of Criminal Procedure; see ‘Relevant domestic law and practice’ below). However, this procedural flaw was irrelevant for the outcome of the proceedings. In its detailed assessment of the evidence, in particular of B.’s credibility, the Court of Appeal had not mentioned that B. had been administered an oath. Therefore, it could be excluded that the Court of Appeal had found the witness more credible due to the fact that he had made his statements on oath. On 3 April 2000, the applicant lodged a complaint with the Federal Constitutional Court, alleging that the criminal proceedings against her, in particular the taking and assessment of the key evidence for the prosecution, had been unfair. On 25 July 2000, the Frankfurt/Main Court of Appeal ordered that the remainder of the applicant’s prison sentence be suspended on probation. It found that the applicant, having regard to the length of her detention on remand, had already served half of her prison sentence. It fixed a probationary period of three years. On 20 December 2000, a panel of three judges of the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. The Federal Constitutional Court found that the examination of the complaint was not necessary for the protection of the applicant’s constitutional rights. The impugned decisions could not be objected to from a constitutional point of view, although the application of the procedural rules resulting in the applicant’s conviction might be seen as close to the borderline of what could be accepted under the Constitution. There was no indication of arbitrariness. Referring to its own case-law, to the case-law of the European Court of Human Rights and to decisions of the Federal Court of Justice, the Federal Constitutional Court recalled that statements obtained from informers who had not been heard at the trial were, as a rule, not sufficient for a judge to reach a final conclusion as to the truth of this information. That information had to be corroborated by other important aspects and indices. The trial court had to be particularly cautious where, as in the present case, informers of police authorities or intelligence services could not be heard in court for the sole reason that the authorities concerned had refused to disclose their identity or to authorize their officers testifying in court to give evidence in this respect. The Federal Constitutional Court found that in the present case there was an accumulation of hearsay evidence which did not directly relate to the facts to be established, but consisted of circumstantial evidence pointing to such facts. However, the trial court’s assessment and evaluation of evidence had not been confined to the depositions of the police officers W. and S. concerning the highly incriminating statements made by the accomplice Said S. and to information obtained from police and intelligence service informers operating abroad, as presented by the witnesses P. and G. Further important circumstantial evidence was the testimony of witness B. His statements showed that the applicant’s assertion that she had not been in Baghdad at the relevant time was wrong, thereby confirming the depositions made by Said S. Therefore, the Federal Court of Justice’s view that the criminal proceedings against the applicant, taken as a whole, had not been unfair within the meaning of Article 6 §§ 1 and 3 (d) of the Convention, was unobjectionable, at least from a constitutional point of view. The decision was served on 22 February 2001. Pursuant to the provisions of the Code of Criminal Procedure, a witness shall be examined in person at the main hearing if the proof of a fact in issue is based on that person’s observation. In principle, the witness’s examination may not be replaced by reading out the record of a previous examination or by reading out a written statement (Section 250 of the said Code). According to the constant case-law of the Federal Court of Justice, Section 250 permits the hearing of witnesses giving hearsay evidence. In particular, it is possible to hear a police officer on evidence obtained from an informer whose attendance at the hearing cannot be secured. As an exception to the above-mentioned principle, the examination of a witness or co-accused may be replaced by reading out the written record of his previous examination by a judge. This is permitted if there are insurmountable impediments preventing the witness or co-accused from attending the main hearing for a long or indefinite period of time (Section 251 no. 2 of the said Code). Pursuant to Section 60 no. 2 of the said Code, it is prohibited to administer an oath to a witness who is suspected of having participated in the offence which was the subject-matter of his hearing. The public prosecutor, the defendant and defence counsel have the right to be present at the examination of a witness by a judge outside the main hearing (Section 168c § 2 of the Code of Criminal Procedure). A defendant who is detained and is represented by counsel is only entitled to be present at hearings of witnesses conducted at the court of the place where he is in custody (Section 168c § 4 of the said Code).