CASE OF LÜDI v. SWITZERLAND
Preliminary objection rejected (victim);Questions of procedure rejected;No violation of Art. 8;Violation of Art. 6-1+6-3-d;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
7. Mr Ludwig Lüdi, a Swiss national, resides at Röschenz in the Canton of Berne. 8. In 1983, while in Germany, he was charged with trafficking in drugs. On 30 November 1983 the 16th Criminal Chamber of the Stuttgart Regional Court ordered the proceedings to be discontinued as a result of various procedural problems, including the intervention of a German undercover agent (V-Mann). On appeal by the public prosecutor’s office, the Federal Court (Bundesgerichtshof) set the order aside on 23 May 1984 and remitted the case to the Stuttgart Regional Court. That court adjourned the case sine die on the grounds that the applicant and his co-defendant, who had been at liberty since 2 September 1983, had returned to Switzerland. 9. On 15 March 1984 the German police informed the police of the Canton of Berne that the applicant had asked a fellow countryman whom he had met while in detention for 200,000 Swiss francs to finance the purchase of approximately 5 kg of cocaine in Switzerland. In order to obtain fuller information on the drugs deal and seize the drugs in question, the investigating judge at the Laufen District Court (Amtsgericht) opened a preliminary investigation on 15 March 1984. With the agreement of the Indictments Chamber of the Court of Appeal (Obergericht) of the Canton of Berne and pursuant to Article 171b of the Berne Code of Criminal Procedure (see paragraph 26 below), he also ordered the applicant’s telephone conversations to be monitored. On 20 June the Indictments Chamber authorised the telephone interception to be extended to 15 September 1984. 10. In addition, the Laufen police and the special drugs unit decided that a sworn officer of the Berne Cantonal Police should pass himself off as a potential purchaser of the cocaine, under the assumed name of Toni. They acted with the authorisation of cantonal police headquarters, and notified the investigating judge at the Laufen District Court of their plan. 11. According to the Government, Toni had attended a course on 12 and 13 December 1978 intended for cantonal officials with responsibility for the fight against drug trafficking, with the aim of drawing their attention to the limits to which their undercover activities were subject and the relevant provisions of the law. Shortly before acting in the present case, Toni was reminded at a meeting with his superior officers of the limits beyond which he was not to go. 12. The applicant met Toni on 19 and 21 March, 15 May and 5 and 14 June 1984, on the latter’s initiative on each occasion, as the applicant did not know his real identity, address or telephone number. 13. He was arrested on 1 August 1984 and charged with unlawful trafficking in drugs. The investigating judge at the Laufen District Court terminated the telephone interception on the same day. In a letter of 22 August 1984 he informed the applicant that he had ordered telephone interception and that it had lasted from 15 March to 2 June 1984. According to Toni’s reports, Mr Lüdi had promised to sell him, as intermediary, 2 kg of cocaine worth 200,000 Swiss francs, and had borrowed 22,000 Swiss francs from a third person for the purchase of cocaine or other narcotics. 14. On 3 August 1984 the police searched the applicant’s home and found traces of cocaine and hashish on a number of objects. 15. On 5 September 1984 the investigating judge at the Laufen District Court ordered the applicant to be released on the ground that he had made "extensive admissions as to the essential parts of the investigation [and that] there [was] consequently no longer any risk of collusion or flight". The Berne police, relying on the results of the preliminary investigation, filed a criminal complaint on 25 October 1984. 16. On 4 June 1985 the Laufen District Court found the applicant guilty of seven offences against the Federal Drugs Law and sentenced him to three years’ imprisonment. In order to preserve the anonymity of the undercover agent, the court declined to call him as a prosecution witness; it considered that the records of the telephone interception and the undercover agent’s reports showed clearly that, even without the agent’s intervention, Mr Lüdi had had the intention of acting as an intermediary in the supply of large quantities of narcotics. 17. Mr Lüdi appealed against his conviction for two of the seven offences, the attempted supply of cocaine to Toni and the attempted purchase of cocaine or another drug by means of the loan he had arranged. 18. On 24 October 1985 the Berne Court of Appeal (First Chamber) confirmed the judgment of 4 June 1985 (see paragraph 16 above). The Court of Appeal did not call the undercover agent either. The court found that the evidence adduced before the trial court had in essence corroborated the content of Toni’s report, in particular with regard to the general course of events. This had clearly shown that the applicant - as had not been disputed by him - had made great efforts in order to supply Toni with 2 kg of cocaine, had contacted M. and then B., travelled to Ticino and Italy, and arranged meetings between Toni and a possible supplier. After initially minimising things, he had eventually decided to admit all these facts, which also followed partly from the interception of his telephone conversations and the statements of M. It had to be regarded as established that Mr Lüdi had been the first to speak to S. about purchasing cocaine; besides, S. had confirmed this, although he had toned down his original statements on this point to some extent. The court then dealt with the applicant’s argument that section 23 subsection 2 of the Federal Drugs Law did not apply to Toni’s actions. The court said that the mere fact that the applicant had planned a significant deal in cocaine before his first contact with the undercover agent brought him within section 19 of that Law. Finally, the detailed reports of the telephone interception showed very clearly that Mr Lüdi had persistently (beharrlich) and on his own initiative attempted to carry out a drugs deal, and that he had for this purpose intended to bring Toni in as the "banker", as he himself did not have the required funds. 19. Mr Lüdi then brought a public law appeal and an application for a declaration of nullity to the Federal Court (Bundesgericht). 20. He alleged in the former that there had been an interference with his right to respect for his private life, which had not been compatible with Article 8 (art. 8) of the Convention. He argued firstly that the monitoring of his telephone conversations had not been "in accordance with the law" and had not been justified under paragraph 2, as he had been suspected merely of having had the intention of committing an offence. Secondly, he complained of the intervention of an undercover agent, which he alleged had been intended to incite him to take part in drug trafficking. He further claimed that the telephone interception could not be used in evidence and that the mere reading of the agent’s reports, without the agent being called as a witness, had prejudiced the exercise of the rights of the defence, in breach of Article 6 (art. 6). 21. On 8 April 1986 the Federal Court dismissed the public law appeal, for the following reasons: "... (a) The public law appeal raises two objections to the ordering of the telephone surveillance. Firstly, it is argued that at the stage of ‘generally investigative police enquiries’ telephone interception was ordered for which there was no statutory provision at that stage; a preliminary investigation was started only for the sake of appearances. Secondly, the appellant complains that Bernese criminal procedure law permits of no preventive telephone surveillance and that the present case did not concern an investigation into an offence which had been committed, but the ascertainment of offences which were about to happen. (b) Under Article 171b of the Berne Code of Criminal Procedure (StrV) an investigating judge can order surveillance of a suspect’s postal, telephone and telegraph communications ‘if an offence whose seriousness or particular features justify the interference or an offence committed by means of the telephone is being investigated’. It is not disputed that in the present case the telephone surveillance was ordered by the competent authority and the procedural rules in Article 171c StrV were complied with. That telephone surveillance in the initial stage of inquiries is excluded by cantonal law does not follow from the Code of Criminal Procedure, nor has it been demonstrated by the appellant. Depending on the circumstances, telephone interception is often appropriate precisely at the beginning of an investigation. From this point of view there is no indication whatever that the order complained of could have infringed the Constitution or that it was made under an arbitrary interpretation of cantonal law. (c) There is no need to examine here whether under the wording of Article 171b StrV telephone surveillance and the other measures regulated thereby are to be strictly confined to investigations of offences already committed, excluding the possibility of preventive surveillance where there is a strong suspicion that offences are about to be committed. Under the sixth paragraph of section 19 subsection 1 of the Drugs Law (Betäubungsmittelgesetz) a person who takes steps in order to participate in some manner in dealing with drugs, transporting or storing them has already committed an offence. By Lüdi’s conduct as reported from Germany, namely his search for finance for a cocaine deal, he had already taken steps as defined above, so that, that being the case, the elements of an offence were already present, and the telephone surveillance ordered related not only to the discovery of planned crimes but also to the investigation of offences which had already been committed. Moreover, it would not be untenable to interpret Article 171b StrV by analogy as a legal basis for preventive measures too, where the interference is justified by the seriousness or particular features of the offence which is anticipated. The telephone surveillance ordered in this case on a basis of serious suspicion of a crime was certainly not an abuse of the law. 3. (a) The use of so-called undercover agents is not expressly provided for in Swiss criminal procedure law, but the dominant opinion is that it is permissible in principle, in so far as the particular nature of the offences is capable of justifying the covert investigative acts and the undercover agent investigates the criminal activity in a predominantly passive manner without using his own influence to arouse willingness to commit the act and induce criminal conduct ... The federal legislature has in section 23 subsection 2 of the Drugs Law expressly taken into account the possibility of using an undercover agent in criminal investigations in the field of drug trafficking. (b) In the ... public law appeal the permissibility of covert investigation in terms of the rule of law is not denied in general and as a matter of principle, but the view is taken that the use of an undercover agent represents a serious interference with the private life and personal freedom of the person concerned and such an interference is possible in a State subject to the rule of law only if founded on a sufficiently precise legal basis ... Such a requirement of a legal basis for the use of undercover agents has not been discussed as yet in Swiss case-law and legal writing, nor expressly acknowledged as a restraint from the point of view of the rule of law. This would be a continuation and extension of the legislature’s reasons underlying the requirement for statutory regulation of telephone interception and similar investigative measures. While coercive measures in the course of criminal procedure (such as arrest, house searches, etc.) clearly interfere against the will of the person concerned with legally protected rights, and surveillance of telephone, postal and telegraph communications without the knowledge of the person concerned interferes in the interests of prosecuting crime with areas of confidentiality which are protected by law, the use of undercover agents is problematic at a somewhat different level: the personal freedom of the person concerned is not restricted, nor does he have to tolerate any other coercive measures, but he comes into contact with a partner who is unknown to him, but with whom he would not have dealings if he knew that he was working for criminal investigation. Where the undercover agent by means of his contacts merely ascertains criminal conduct which would have taken place in the same or similar fashion even without his intervention, the use of an undercover agent is no doubt unobjectionable. On the other hand, it would not be permissible if the undercover agent were to take the initiative, as it were, and provoke criminal activity which would otherwise not have come about at all; for the prosecuting authorities must not provoke criminality in order to be able to prosecute criminals whose readiness to commit crime, possibly present but latent, would otherwise not have become manifest. If the undercover agent fosters the criminality of the person concerned without it being possible to regard him directly as initiating or inciting, but nevertheless in such a way that it must be assumed that the criminal act would have been of lesser extent and seriousness without the ‘participation’ of the undercover agent, this is to be taken into account when passing sentence. Covert investigation does not encroach on a basic right protected by the Federal Constitution (or the European Convention). The person concerned is free as regards his decisions and his behaviour towards the undercover agent; he is, however, deceived as to the identity of his negotiating partner and the latter’s connection with the police. A criminal is not protected by constitutional law against being observed in the course of his illegal conduct by a police officer who is not recognisable to him as such. Nor can any protection of a criminal against covert investigation be derived from the European Convention (Article 8) (art. 8). Whether the investigative methods of undercover agents should because of certain risks of abuse be statutorily regulated, and whether a statutory rule would be likely to counteract any abuses better than is currently done by case-law, is for the legislature to decide. According to current constitutional law and statute law, the use of an undercover agent is permissible within the bounds set by the general principles of the rule of law, without it requiring an express statutory basis. There are other investigative measures too - as for example the constant surveillance of a suspect - which may seriously affect private life and lead to findings which are unwelcome for the person concerned, without it ever having been thought necessary for there to be a statutory basis for such measures. (c) If, therefore, as the law stands there is no requirement of a statutory basis for the use of undercover agents, it is not necessary to examine whether section 23 subsection 2 of the Drugs Law could be regarded as a sufficient statutory basis in the absence of a corresponding provision in cantonal procedural law. The wording of the subsection shows that it is not an enabling provision of criminal procedure, but a rule of substantive law on the question, which need not be discussed here, as to the circumstances under which acts by an undercover agent which are objectively the elements of an offence are not liable to punishment. 4. The activity of undercover agent ‘Toni’ did not go beyond the bounds, described above, of covert investigation acceptable in a State governed by the rule of law: (a) The investigation of suspected drug offences is often, because of the nature of such offences, possible only by an undercover agent. It is precisely in this sphere that this method proves to be necessary and effective ... Once a report had been received of a definite suspicion that the appellant wished to carry out a substantial cocaine deal, it was not disproportionate to use a police officer to pose as a buyer. This did not involve an arbitrary interpretation of cantonal procedural law, nor was there a breach of a basic right or a human right protected by the European Convention. (b) On the basis of the statements made by the various parties, and assessing the evidence in a reasonable and non-arbitrary fashion, the court below found that Lüdi first mentioned a cocaine deal to Schneider and then spontaneously offered ‘stuff’ to the interested party ‘Toni’ as well. Although subsequently it was always ‘Toni’ who contacted Lüdi to find out how things were progressing, it does not follow from this that the appellant did not commit an offence. Lüdi of his own accord got in touch with possible suppliers and also tried to find money for drug dealing elsewhere. As he had no telephone number for ‘Toni’, he necessarily had to wait for him to ring him. The essential point is that ‘Toni’ did not act as the instigator, but by posing as a buyer merely made it possible to investigate the appellant’s activities, which were aimed at a substantial deal in cocaine. 5. The appeal argues at great length that no account may be taken directly or indirectly of the statements of undercover agent ‘Toni’, for the further reason that he was not summoned and heard as a witness ... . If it is recognised that the use of undercover agents is justified in the public interest in fighting as effectively as possible against drug dealing, it follows that the identity and the investigative methods of such agents are not lightly to be given away in criminal proceedings; for their continued use would thereby effectively be made largely impossible. Preserving the secrecy of undercover agents does not in itself infringe principles of criminal procedure or constitutional rights. It is a matter for the court assessing the evidence to decide what weight can be attached in a particular case to the written statements of an undercover agent who has not appeared before the court, where there are legally relevant facts which are in dispute. The allegations that the appellant carried out preparatory actions which constituted criminal offences have been substantiated by the result of the telephone interception, the appellant’s own statements and those of the other persons involved. If the court below attributed to the undercover agent a somewhat less active role than that alleged by the appellant in his account of the facts, that was not arbitrary but was based on a tenable assessment of the evidence. ..." (Annuaire suisse de droit international, 1987, pp. 229-230 and 232-234) 22. In contrast, in a judgment of the same day, the Cassation Division of the Federal Court granted the application for a declaration of nullity. The court said that the Laufen District Court, when convicting the applicant, had not taken sufficient account of the effect on his behaviour of the actions of the undercover agent, and the Berne Court of Appeal had not mentioned the outcome of the proceedings brought against the applicant in Germany or the fact that he had no criminal record. The Federal Court remitted the case to the Berne Court of Appeal. 23. On 19 February 1987 the First Chamber of that court reduced the sentence to eighteen months’ imprisonment, suspended for three years. It also ordered that the out-patient medical treatment which Mr Lüdi had started while in detention should be continued. As grounds for its decision it cited its concern to take into account the intervention of Toni, and a psychiatric report stating that the applicant had been under the influence of cocaine at the time of the offences and hence had only limited responsibility. 24. The Drugs Law provides in sections 19 and 23 that: "1. Any person who unlawfully cultivates alkaloid plants or hemp in order to obtain drugs, any person who unlawfully manufactures, extracts, transforms or processes drugs, any person who unlawfully stocks, dispatches, transports, imports or exports them or carries them in transit, any person who unlawfully offers, distributes, sells, deals in, procures, prescribes, markets or transfers them, any person who unlawfully possesses, holds, purchases or otherwise obtains them, any person who takes steps to do so, any person who finances unlawful traffic in drugs or serves as intermediary for such financing, and any person who publicly encourages the consumption of drugs or publicly announces an opportunity for the acquisition or consumption of drugs, shall be liable, if he acts intentionally, to imprisonment or a fine. In serious cases the penalty shall be imprisonment for not less than one year, which may be accompanied by a fine of up to one million francs. 2. A case is serious in particular if the person committing the offence (a) knows or must be aware that the offence relates to a quantity of drugs which may endanger the health of a large number of people; (b) acts as a member of a gang formed for the purpose of the unlawful dealing in drugs; (c) obtains a large turnover or a substantial profit by dealing as a business. ..." "1. If an official responsible for the enforcement of this law intentionally commits an offence under sections 19 to 22, the penalty shall be increased as appropriate. 2. An official who for investigative purposes in person or by the agency of another accepts an offer of drugs or personally or by the agency of another takes possession of drugs shall not be liable to punishment, even if he does not disclose his identity and status." Statement of the Federal Council to the Federal Parliament of 9 May 1973 relating to an amendment to the Federal Drugs Law [and in particular to the introduction of an amended section 23] "... The amendment introduced at the end of the sentence is intended to give the court more latitude in determining the sentence where an official responsible for the enforcement of the Drugs Law deliberately contravenes that law. The intention of the draft provisions, which follow on from the present section 23, is to facilitate police investigations in a field where they are particularly difficult. This is a question of allowing the police to enter the environment of dealers and sellers without exposing themselves to criticism for having incited the commission of offences or even having committed them themselves. Illegal drug trafficking has often been cited as a typical example of well-organised international gangs, some of which have been broken up in recent months. The police must be given adequate means for increasing the effectiveness of their campaign against these gangs of traffickers, as the Council of Europe asks us to do. Article 32 of the Criminal Code (official duty) is not sufficient to justify such actions. They must rest on a legal basis in each particular case (see Prof. Max Waiblinger, no. 1204, Fiches juridiques suisses, faits justificatifs). ..." 25. The Government stated that section 23 subsection 2 was regarded by cantonal courts and the Federal Court as permitting only a passive attitude on the part of undercover agents, who incurred criminal liability in the event of instigation or provocation by them. Moreover, the use of such agents could be ordered only in serious cases of organised crime relating to drug trafficking. The Federal Court has held that the section in question derogates from provisions of cantonal law which may conflict therewith: "... it is not necessary for section 23 subsection 2 of the Drugs Law to have as its purpose the regulation of a procedural point, which the appellant contests; it is sufficient that the cantonal legislation compromises the anonymity which the federal legislature - whose intentions are not in doubt here, if one considers the extracts from the parliament’s travaux préparatoires pertinently cited by the cantonal authorities - intended to guarantee to persons pursuing drug dealers. The anonymity intended by the legislature has one purpose only: to allow the investigator to continue his work subsequently to the arrest of the person or persons whom he has exposed and to allow him to carry on several cases at once without the completion of one of them terminating his activities in the others. If once an inquiry has been completed the police officer has to disclose his identity and explain in detail the role he has played, it is self- evident that he will have to abandon any further work, as his cover will have been blown in drug-dealing circles. For this reason the observance of Articles 58 and 59 of the cantonal Code of Criminal Procedure is in conflict with section 23 subsection 2 of the Drugs Law ..." (Cassation Division, judgment of 5 June 1986). 26. The Berne Code of Criminal Procedure makes provision for various investigative measures: "The investigating judge may order surveillance of a suspect’s postal, telephone and telegraphic communications and have his mail seized if an offence whose seriousness or peculiar features justify the interference or an offence committed by means of the telephone is being investigated." "1. The investigating judge shall within twenty-four hours of his decision submit to the Indictments Chamber for approval a duplicate copy of his order together with the case-file and a short statement of reasons. 2. The order shall remain in force for three months at most; the investigating judge may extend it for a maximum of three months. The extension order is to be submitted to the Indictments Chamber for approval with the case-file and reasons ten days before the expiry of the period. 3. The investigating judge shall terminate the surveillance as soon as it becomes unnecessary or the period expires or if the order is withdrawn." 27. Articles 24 and 32 of the Swiss Criminal Code provide that: "1. A person who intentionally persuades another person to commit an offence shall, if the offence is committed, be liable to the penalty to which the person who commits the offence is liable. 2. A person who attempts to persuade another person to commit a serious offence shall be liable to the penalty prescribed for the attempted commission of that offence." "An act which is ordered by law or by an official or professional duty, or which is stated by law to be permitted or not liable to punishment, shall not be an offence."