KEMPTER v. GERMANY
Inadmissible
Antonio Pastor Ridruejo
The applicant, born in 1950, is a German national. He is a businessman by profession. When lodging his application, he was detained in a prison at Landsberg/Lech. In October 1991 criminal proceedings were commenced against, inter alia, the applicant on charges of drug trafficking. In these proceedings, he was assisted by defence counsel. The applicant was arrested on 2 November 1991 on the basis of an arrest warrant issued by the Munich District Court (Amtsgericht) on 31 October 1991 and taken into detention on remand. His detention was suspended on 24 February 1992. On 3 March 1992 he was again arrested and detained on remand until 23 March 1993. On 24 April 1992 the Munich Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment (Anklageerhebung) against the applicant. He was charged with two counts of drug trafficking. On 8 October 1992 the Munich I Regional Court (Landgericht) partly rejected the indictment. It refused in particular to open the trial proceedings as to one count of drug trafficking. The court considered that, having regard to the evidence presented by the Prosecutor’s Office, there was not sufficient suspicion to justify committing the applicant for trial. On 5 April 1993 the Munich Court of Appeal (Oberlandesgericht), on the Public Prosecutor's appeal, committed the accused for trial on all counts. It further directed that the trial was to open before the Regional Court. On 28 March 1995 the Munich I Regional Court, following trial hearings between January and March 1995, convicted the applicant of one count of drug trafficking. Having regard to two previous convictions, it fixed a cumulative sentence of three years and six months' imprisonment. The court found in particular that the applicant and his co-accused had sold cocaine to an undercover agent of the German police. The Court considered that their defence, namely that they had themselves intended to arrange for a fictitious deal and the subsequent prosecution of the purchaser, was in itself inconclusive and refuted by the evidence. The applicant's contacts with the police authorities had only served the purpose of finding out whether the purchaser was an undercover agent. Medical expert evidence had confirmed the applicant's full criminal responsibility. On 28 November 1995 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's appeal on points of law. In his statement of appeal, the applicant’s counsel had complained about the violation of substantive law in general and also about a point of procedural law, namely the alleged taking into account of evidence not produced at the trial. The applicant’s request for leave to file supplementary reasons out of time was rejected on the ground that he had failed to submit these reasons together with his request. The applicant received the decision on 7 December 1995. Sitting as a panel of three members, on 16 January 1996 the Second Chamber of the Second Division (zweite Kammer des Zweiten Senats) of the Federal Constitutional Court (Bundesverfassungsgericht) declined to entertain the applicant's constitutional appeal of 17 December 1995.