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You are here: BAILII >> Databases >> European Court of Human Rights >> STOCKÉ v. GERMANY - 11755/85 [1991] ECHR 25 (19 March 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/25.html Cite as: (1991) 13 EHRR 839, [1991] ECHR 25, 13 EHRR 839

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In the Stocké case*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and

the relevant provisions of the Rules of Court***, as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr F. Gölcüklü,

Mr F. Matscher,

Sir Vincent Evans,

Mr C. Russo,

Mr R. Bernhardt,

Mr J. De Meyer,

Mr S.K. Martens,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 25 October 1990 and

18 February 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 28/1989/188/248. The first number is

the case's position on the list of cases referred to the Court in

the relevant year (second number). The last two numbers indicate

the case's position on the list of cases referred to the Court

since its creation and on the list of the corresponding

originating applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which

came into force on 1 January 1990.

*** The amendments to the Rules of Court which came into force

on 1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 13 December

1989, within the three-month period laid down by Article 32 § 1

and Article 47 (art. 32-1, art. 47) of the Convention. It

originated in an application (no. 11755/85) against the Federal

Republic of Germany lodged with the Commission under Article 25

(art. 25) by a national of that State, Mr Walter Stocké.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby the Federal

Republic of Germany recognised the compulsory jurisdiction of the

Court (Article 46) (art. 46). The object of the request was to

obtain a decision as to whether the facts of the case disclosed a

breach by the respondent State of some of its obligations under

Article 5 § 1 and Article 6 § 1 (art. 5-1, art. 6-1) of the

Convention.

2. In response to the enquiry made in accordance with Rule 33

§ 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings and designated the lawyer

who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr R. Bernhardt, the elected judge of German nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 § 3 (b)). On 27 January 1990, in

the presence of the Registrar, the President drew by lot the

names of the other seven members, namely Mr J. Cremona, Mr F.

Gölcüklü, Mr F. Matscher, Mr J. Pinheiro Farinha, Sir Vincent

Evans, Mr N. Valticos and Mr S.K. Martens (Article 43 in fine of

the Convention and Rule 21 § 4) (art. 43). Subsequently Mr C.

Russo and Mr J. De Meyer, substitute judges, replaced Mr Pinheiro

Farinha and Mr Valticos, who were unable to take part in the

further consideration of the case (Rule 22 § 1 and 24 § 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5) and, through the Deputy Registrar, consulted the

Agent of the German Government ("the Government"), the Delegate

of the Commission and the lawyer for the applicant on the need

for a written procedure (Rule 37 § 1).

In accordance with the order made in consequence, the

Registrar received the Government's and the applicant's memorials

on 15 June and the applicant's claims under Article 50 (art. 50)

of the Convention on 6 July.

In a letter of 2 August 1990 the Secretary to the Commission

informed the Registrar that the Delegate would be submitting his

observations at the hearing.

On 9 August the Commission supplied various documents that

the Registrar had requested on the President's instructions.

5. Having consulted, through the Registrar, those who would be

appearing before the Court, the President had directed on 25 May

1990 that the oral proceedings should open on 23 October (Rule

38). On 9 July he gave the Government's representatives and the

applicant leave to address the Court in German (Rule 27 §§ 2 and

3).

6. In his memorial of 15 June and his observations of 4 July on

the application of Article 50 (art. 50) the applicant requested

that evidence should be heard from five witnesses. On 29 August

1990 the Court decided to ask the Agent of the Government and the

Delegate of the Commission to give their views in writing on the

applicant's request.

In his observations of 5 September the Delegate of the

Commission expressed the opinion that the Commission had gathered

all the evidence necessary to carry out its task. The Agent of

the Government, in his observations of 10 September, raised

objections to the measure requested by Mr Stocké.

On 27 September 1990, after deliberating in private, the

Court refused to make the requested further inquiries into the

facts, as matters stood.

7. The hearing took place in public in the Human Rights

Building, Strasbourg, on the appointed day. The Court had held a

preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J. Meyer-Ladewig, Ministerialdirigent,

Federal Ministry of Justice, Agent,

Mr H. Gauf, Generalstaatsanwalt

at the Zweibrücken Court of Appeal,

Mr G. Uhink, Amtsrat,

Federal Ministry of Justice, Advisers;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) for the applicant

Mr T. Vogler, Professor of Criminal Law,

University of Giessen, Counsel.

The Court heard addresses by Mr Meyer-Ladewig for the

Government, Mr Weitzel for the Commission and Mr Vogler for the

applicant, as well as their replies to its questions. The

Government produced documents at the hearing.

AS TO THE FACTS

8. Mr Walter Stocké, a German citizen born in 1926, was the

owner of a building firm which went bankrupt in 1975.

9. From 26 March to 9 July 1976 he was held in custody under a

warrant (Haftbefehl) issued by the Ludwigshafen District Court

(Amtsgericht), as he was suspected of tax offences. In November

1977 the court ordered that he should be redetained as he had not

complied with the conditions of his provisional release. In

order to avoid arrest, Mr Stocké fled to Switzerland and then to

Strasbourg in France. In November 1977 an international request

for the location of his whereabouts was issued.

10. In 1978 Mr Köster, a police informer in

Rhineland-Palatinate, offered Mr Hoff, a police officer, his

assistance in finding Mr Stocké and asked to meet the public

prosecutor dealing with the case; he claimed to be able to

contact the applicant through one of the latter's former

colleagues, Mr Werner. Mr Hoff informed another police officer,

Mr Rittmeier, who was leading the investigation concerning Mr

Stocké, and his own superior, Mr Reuber, the head of the general

inquiries section of the Rhineland-Palatinate police.

A. The meeting at the Kaiserslautern public prosecutor's

office

11. The meeting, which lasted for about half an hour, took place

in the office of Mr Wilhelm, a public prosecutor who was head of

the business crime section of the Kaiserslautern public

prosecutor's office, in the spring of 1978. Earlier, Mr Wilhelm

had sought information from Mr Stepper, a prosecutor at the

Frankenthal public prosecutor's office, about Mr Köster, who was

himself the subject of criminal proceedings.

The meeting was attended by Mr Henrich, the prosecutor in

charge of the investigation concerning Mr Stocké; Mr Reuber and

Mr Rittmeier, representing the police; and Mr Köster. Mr Köster

repeated his earlier proposal (see paragraph 10 above). He

mentioned a building project in Spain which might interest the

applicant, and a plan to have Mr Stocké deported from Luxembourg.

According to Mr Wilhelm, Mr Köster wanted to know at the outset

whether his services would be rewarded. The prosecutor told him

that his department did not have funds to reward individuals for

their help in tracking down criminals but that his assistance

might be taken into account as an extenuating circumstance at his

own trial; Mr Wilhelm emphasised, however, that any action had to

be lawful and designed either to discover the applicant's

whereabouts abroad, for the purpose of extradition proceedings,

or to induce him to return to the Federal Republic of Germany of

his own accord (see paragraph 97 of the Commission's report).

B. The attempt to have the applicant deported from Luxembourg

12. At a meeting in a Frankfurt hotel Mr Köster introduced Mr

Hoff to Mr Werner as someone interested in investing in the

building project in Spain (see paragraph 11 above). It was

decided, however, that the three would meet again in Luxembourg,

as Mr Hoff wished to continue the discussions with Mr Stocké

himself present.

13. The criminal investigation department enquired of the

Luxembourg police whether the latter could arrest the applicant

on the ground that he had committed criminal offences in the

Grand Duchy and deport him to the Federal Republic of Germany.

At police headquarters in Luxembourg Mr Hoff, who had gone there

for the purpose, was informed that, as the law then stood, the

applicant could demand to be taken to the French border; without

an international arrest warrant, however, no action could be

taken against Mr Stocké at all.

Mr Hoff decided at that point not to go to the meeting that

had been arranged (see paragraph 12 above); he contacted the

applicant and pretended that he had had a road accident in the

Federal Republic of Germany. He suggested a meeting in Trier,

but the proposal was rejected.

14. Mr Reuber informed the Kaiserslautern public prosecutor's

office that the "Luxembourg plan" had failed.

C. The applicant's arrest at Saarbrücken Airport

15. On Mr Köster's initiative, the negotiations were to be

resumed in a Strasbourg hotel on 7 November 1978

(see paragraph 12 above).

16. In the meantime, the Kaiserslautern public prosecutor's

office had renewed the international request for the location of

Mr Stocké's whereabouts (see paragraph 9 above) for the purpose

of seeking his extradition from France.

17. On the morning of 7 November 1978 Mr Köster

telephoned Mr K. Ebeling, an officer in the Schifferstadt police,

to ask him to warn two other police officers, Mr Klemp and Mr

Höffel, of Mr Stocké's probable arrival at Saarbrücken Airport

towards the end of the afternoon. The head of the Ludwigshafen

police then ordered the three policemen to go to Saarbrücken and

seek the help of the local police.

The three policemen, assisted by members of the Saarbrücken

police task-force, waited for the applicant at the airport.

18. On the same day Mr Köster, accompanied by Mr Werner, met

Mr Stocké in Strasbourg as planned (see paragraph 15 above). He

told him that the other interested parties had not been able to

come but were waiting for them in Luxembourg and that he had

chartered a plane to take them there. Before take-off Mr Köster

secretly asked Mr Marzina, one of the two pilots, to touch down

at Saarbrücken. At 7.50 p.m. the plane landed at

Saarbrücken-Ensheim Airport. The pilots had previously reported

icing of the engine and alerted air-traffic control at the

airport, but they did not seek any technical assistance after

they had landed.

19. The applicant was immediately arrested and taken into

custody; the warrant for his arrest issued in 1976 was still

valid (see paragraph 9 above).

On the next day, 8 November 1978, Mr Reuber informed Mr

Wilhelm, the prosecutor, of these events. Mr Köster received DEM

500 from the Ludwigshafen police and on 16 March 1979 a further

DEM 2,500 by way of reimbursement of his expenses, in particular

the cost of chartering the plane.

D. The applicant's complaints of false imprisonment

20. On 15 May 1979 Mr Stocké lodged a criminal complaint against

Mr Köster and a person or persons unknown alleging false

imprisonment.

21. The public prosecutor's office at Zweibrücken opened an

investigation concerning "Köster and Others" and instituted

disciplinary proceedings against Mr Schnarr, the director of the

Kaiserslautern public prosecutor's office, the prosecutors

Wilhelm and Henrich and the policemen involved in the applicant's

arrest. In official statements made in September 1979 the three

prosecutors each said that they had only learned of the arrest on

8 November 1978. In a memorandum of June 1979 Mr Adam, the head

of the special task force at Saarbrücken police station, had

revealed that Mr Henrich had given instructions concerning the

police measures to be taken in Saarland.

On 24 September 1979, however, the public prosecutor's

office, taking the view that Mr Stocké had been arrested under a

warrant issued in accordance with Article 112 of the Code of

Criminal Procedure, decided to end the investigation. It

considered that the facts complained of by the applicant did not

amount to false imprisonment within the meaning of Article 239 of

the German Criminal Code. The disciplinary proceedings against

the three prosecutors were discontinued at the same time.

22. On 7 October 1979 the applicant again lodged a complaint

against a person or persons unknown, alleging kidnapping; he

accused the public prosecutor's office and Mr Köster of

collusion.

In October and November 1979 Mr Schnarr, Mr Wilhelm and

Mr Henrich repeated their previous statements (see paragraph 21

above). Mr Lesmeister, Mr Antes and Mr Biesel, police officers

who had taken part in the arrest, said that the Ludwigshafen

police had asked for their assistance during the morning of 7

November (see paragraph 17 above) and that Mr Klemp had said he

was acting with the consent of the appropriate public

prosecutor's office.

23. On 5 February 1980 the Zweibrücken Court of Appeal

(Oberlandesgericht), to which Mr Stocké had appealed against the

decision of 24 September 1979 (see paragraph 21 above), ordered

that the investigation should be resumed. In August 1980 Mr

Klemp, Mr Höffel and Mr K. Ebeling refused to give evidence on

the grounds that they were likely to incriminate themselves

(Article 55 of the Code of Criminal Procedure); Mr Höffel also

relied on his duty of discretion, as the questions put related to

specific aspects of police strategy.

24. On 15 November 1980 the applicant lodged a complaint against

Mr Reuber, Mr Klemp, Mr Höffel and Mr K. Ebeling alleging false

imprisonment. In February and March 1981 they refused to give

evidence.

25. On 23 September 1981 the director of the Zweibrücken public

prosecutor's office rejected a fresh complaint by the applicant

against certain prosecutors and policemen involved in his return

from France.

26. On 10 November 1982 the public prosecutor's office charged

the two pilots, Mr Marzina and Mr M. Ebeling, and Mr Klemp, Mr

Höffel and Mr K. Ebeling with aiding and abetting false

imprisonment.

On 26 July 1983, however, the Frankenthal Regional Court

(Landgericht) decided not to proceed to trial, on the ground that

there were insufficient reasons for suspecting the accused. The

public prosecutor's office and Mr Stocké lodged appeals, which

the Zweibrücken Court of Appeal dismissed on 6 April 1984.

27. The court held that the two pilots had to be exonerated, as

their assertions that they had known nothing of Mr Köster's plan

could not be refuted. In particular, Mr Marzina had been charged

on the basis of statements made by Mr Kummer (himself a police

informer), who claimed that he had been present when Mr Köster

asked the two pilots to simulate a forced landing at Saarbrücken.

Those statements lacked credibility, however, both for objective

reasons - apparent contradictions and errors - and for subjective

reasons - resentment of Mr Köster and the police officers who

were sparing no effort to help him out. Furthermore, Mr

Marzina's evidence that the landing was necessary because of a

technical fault could not be challenged; Mr Werner had himself

heard the engine spluttering. Be that as it might, the pilot

would have agreed to land at Saarbrücken in any case, as Mr

Köster, who was one of his regular customers, had asked him to do

so; nor could Mr Marzina have suspected Mr Köster's ulterior

motives. Lastly, the applicant had made no objection when the

pilot told him they were going to fly over a small part of German

territory.

As for the three policemen, the Court of Appeal noted that

their mere knowledge of the applicant's arrival and the action

they had taken to arrest him did not constitute any offence;

their complicity with Mr Köster would have been made out only if

they had known of and concurred in the applicant's being flown to

Saarbrücken against his will. The court again drew attention to

the fact that Mr Kummer's accusations against the policemen were

vague and contradictory; and it gave no credence to the

statements of other witnesses, on the ground that they were based

on what the witnesses had subsequently heard from Mr Köster, who

boasted excessively of his collaboration with the police.

Lastly, the fact that Mr Köster, Mr Werner, Mr Klemp, Mr Höffel

and Mr Marzina had celebrated Mr Stocké's arrest with champagne

was not sufficient to establish that the police officers had been

told of it in advance.

28. In the meantime the proceedings against Mr Köster had been

suspended, as he had absconded. He was arrested in Austria in

April 1982 and extradited to the Federal Republic of Germany on

other charges and not on that of false imprisonment, as the

Austrian authorities considered that Mr Stocké had been arrested

under a valid warrant and that his detention was accordingly not

unlawful in Austrian law.

29. In two letters sent to Mr Klemp (the police officer) and

Mr Wilhelm (the prosecutor) in April and November 1982

respectively Mr Köster sought their help, mentioning the services

he had rendered as a police informer, especially in the

applicant's case. He stated that the operation involving Mr

Stocké had been mounted by the Kaiserslautern public prosecutor's

office and the Rhineland-Palatinate police, the latter having

even indicated the appropriate time to act. In his first letter

he denied having asked the pilots to touch down at Saarbrücken

and having informed the authorities, but he retracted that denial

in the second letter.

30. Mr Köster was released in July 1983 on condition that he did

not leave the country, but he fled abroad. He returned to

Germany in October 1987, unbeknown to the police, and was

arrested in February 1988 for uttering counterfeit currency. On

14 November 1988 the Frankenthal Regional Court sentenced him to

four years and six months' imprisonment for forgery, and on 16

March 1989 to eight years for fraud; the two sentences were

aggregated and a total sentence (Gesamtstrafe) of nine years was

imposed.

E. Proceedings against the applicant

1. The proceedings in the Kaiserslautern Regional Court

31. The trial began in the Kaiserslautern Regional Court on

25 October 1979.

32. On 17 March 1981 the court ordered that Mr Stocké's

detention should be continued. He appealed against this order to

the Zweibrücken Court of Appeal, which dismissed his appeal on

16 April 1981. He then applied to the Federal Constitutional

Court (Bundesverfassungsgericht), but on 26 August 1981 a panel

of three of that court's judges decided not to entertain the

appeal, because the applicant had insufficient prospects of

success.

33. On 4 February 1982 the Regional Court found Mr Stocké guilty

of fraud in two cases (and of incitement to commit fraudulent

conversion in one of them) and of tax evasion and failure to keep

proper accounts in three others; the applicant was sentenced to

six years' imprisonment.

In its judgment, which ran to 399 pages, the court said that

it had not been established that the Kaiserslautern public

prosecutor's office had supported the alleged kidnapping of Mr

Stocké or had known of it in advance; the official statements on

the matter by the prosecutors concerned were categorical and

could not be called in question. It was therefore unnecessary to

seek other relevant evidence as neither the kidnapping nor the

alleged resulting breach of the Franco-German extradition treaty

could be a bar to the proceedings against the applicant. Mr

Stocké's arrest on German territory under a valid, lawful warrant

was not unlawful and was not contrary to international law even

if the police authorities had got wind of this "private

kidnapping" (private Entführung). Even on the assumption that Mr

Köster had acted at the instance of the police and with their

help, Mr Stocké was subject to the jurisdiction of the German

courts. Nor could he rely on a breach of the Franco-German

extradition treaty, which created rights and obligations only

between the Contracting States; a violation of it could only

affect those two States' mutual relations and could not avail the

individual concerned.

The court added that Article 25 of the Basic Law (primacy of

the general rules of international law over federal laws) was

likewise no bar to the current proceedings. It was for the

aggrieved State to assert its right to ask for the return of the

person kidnapped. The French Government, however, had not done

so; on the contrary, by a letter of 30 October 1980 the

Strasbourg public prosecutor's office had informed the Principal

Public Prosecutor at Kaiserslautern that it had dropped the

proceedings initiated on the applicant's complaint alleging false

imprisonment, as no offence had been committed on French

territory. Its investigations had shown that the applicant had

boarded the aircraft of his own free will.

2. The proceedings in the Federal Court of Justice

(Bundesgerichtshof)

34. Mr Stocké lodged an appeal on points of law (Revision) with

the Federal Court of Justice.

35. When interviewed by the Mannheim police on 25 July 1984 at

the Federal Court's request, Mr Kummer (see paragraph 27 above)

described his conversations with Mr Köster, during which the

latter had told him of his meetings with the policemen in order

to devise a plan to bring the applicant back to the Federal

Republic of Germany by a trick; in particular, Mr Stepper (a

public prosecutor) had approved the plan and Mr Köster had

celebrated its successful implementation with the policemen

concerned in a Mannheim hotel.

36. On 2 August 1984 the Federal Court dismissed the appeal and

upheld the judgment of the Kaiserslautern Regional Court, whose

reasoning it for the most part endorsed. It emphasised that the

defendant, a German citizen, came under the jurisdiction of the

German courts and did not belong to a category of persons who

could assert any ground of personal immunity.

3. The proceedings in the Federal Constitutional Court

37. On 17 July 1985 the Federal Constitutional Court, sitting as

a panel of three judges, declined to entertain Mr Stocké's appeal

against the judgments of 4 February 1982 and 2 August 1984 (see

paragraphs 33 and 36 above), on the ground that it had no

prospects of succeeding.

The court held that there was no rule of international law

to prevent a State's courts from prosecuting a person brought

before them in breach of the territorial sovereignty of another

State or of an extradition treaty. It was apparent from

American, Israeli, French and British case-law that in such an

event a court did not decline jurisdiction unless the other State

had protested and sought the return of the person concerned. The

fact that there were a few decisions in which courts had ordered

that the proceedings should be stayed was not sufficient to

establish a real practice to that effect.

The court added, among other things, that when he was living

in France the applicant was not safe from prosecution in the

Federal Republic of Germany; the fact that he was charged mainly

with tax offences did not preclude his extradition.

38. Mr Stocké served the remaining part of two-thirds of his

sentence between 10 June and 6 December 1985 and was

conditionally released in respect of the rest.

F. The prosecution of Mr Köster for false imprisonment

39. On 9 December 1986 the Principal Public Prosecutor at

Zweibrücken asked Mr Stepper to submit his observations on his

part in the proceedings which had led to Mr Stocké's arrest and

on Mr Kummer's evidence (see paragraph 35 above).

40. In an official statement on 7 August 1987 Mr Wilhelm,

answering allegations in Mr Köster's second letter (see

paragraph 29 above), described the discussions which had taken

place in his office in 1978 (see paragraph 11 above); he claimed

to have told Mr Köster that the public prosecutor's office could

not give him any instructions as to the plan to have the

applicant deported from Luxembourg and he said that it had been

left entirely to Mr Köster to decide whether he wanted to induce

Mr Stocké to return to the Federal Republic of Germany.

41. On 23 March 1988 the Frankenthal public prosecutor's office

charged Mr Köster with false imprisonment and informed Mr Stocké

of this. On 2 April 1989 the Frankenthal Regional Court

dismissed the prosecution's application to commit the applicant

for trial on that charge; it referred to the Zweibrücken Court of

Appeal's judgment of 6 April 1984 (see paragraph 27 above) and

ruled that the evidence from the investigation could not support

a finding that Mr Köster was guilty.

42. On an appeal by the prosecution and the applicant, who had

joined the criminal proceedings as a civil party seeking damages,

the Zweibrücken Court of Appeal set aside that decision on

15 November 1989 and committed Mr Köster for trial by the Third

Criminal Division of the Frankenthal Regional Court, in

accordance with the indictment. It held that there was

sufficient circumstantial evidence to warrant concluding that Mr

Köster had committed the offence with which he was charged. The

court added that a provisional assessment of the evidence that

had been gathered suggested that a conviction would be secured;

many of the twenty or so witnesses had testified that Mr Köster

had contrived the landing at Saarbrücken. As for the policemen

involved, it noted that their refusal to give evidence was no

longer justified as any proceedings for aiding and abetting false

imprisonment were now time-barred (Article 78 of the Criminal

Code).

43. In a letter of 18 July 1990 the Frankenthal public

prosecutor's office applied to the presiding judge of the Third

Criminal Division for a ruling that the proceedings were

time-barred; but for that, it added, Mr Köster would undoubtedly

have been convicted. The Frankenthal Regional Court granted the

application in a decision of 28 August 1990, which, on an appeal

by the applicant, was upheld by the Zweibrücken Court of Appeal

on 26 October 1990.

PROCEEDINGS BEFORE THE COMMISSION

44. In his application of 20 September 1985 to the Commission

(no. 11755/85), Mr Stocké relied on Article 5 § 1 (art. 5-1) of

the Convention, alleging that the circumstances of his arrest

made it and his detention both on remand and after conviction

unlawful. He also asserted that those circumstances had deprived

him of a fair trial as guaranteed by Article 6 § 1 (art. 6-1).

45. After examining a mass of evidence relating to the events

complained of, which had been obtained both during the national

proceedings and during those before the Commission, the

Commission declared the application admissible on 9 July 1989.

In its report of 12 October 1989 (made under Article 31) (art.

31) it expressed the opinion by twelve votes to one that there

had been no breach of Articles 5 § 1 and 6 § 1 (art. 5-1, art. 6-

1). The full text of the Commission's opinion is reproduced as

an annex to this judgment*.

_______________

* Note by the Registrar. For practical reasons this annex will

appear only with the printed version of the judgment (volume 199

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

46. At the hearing on 23 October 1990 the Government asked the

Court to hold that the Federal Republic of Germany had not

violated the Convention in the instant case.

AS TO THE LAW

47. Mr Stocké claimed to be the victim of collusion between the

German authorities and Mr Köster for the purpose of bringing him

back to the Federal Republic of Germany against his will with a

view to arresting him. The collusion allegedly resulted in

violations of Articles 5 § 1 and 6 § 1 (art. 5-1, art. 6-1),

which provide:

Article 5 (art. 5)

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

(a) the lawful detention of a person after conviction by a

competent court;

...

(c) the lawful arrest or detention of a person effected for

the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an

offence or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having

done so;

... ."

Article 6 (art. 6)

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by [a]

... tribunal ... ."

According to the applicant, the prosecuting authorities

considered that it was too uncertain whether an extradition

request to France would succeed and had preferred to make use of

a police informer to do "the dirty work abroad".

While conceding that the extent of the prosecuting

authorities' involvement in the preparations for Mr Köster's

enterprise was not wholly clear, the applicant alleged that the

authorities were acquainted in minute detail with the plan to

kidnap him in Strasbourg; the failed attempt to have him expelled

from Luxembourg on trumped-up charges (see paragraph 13 above)

showed, moreover, that the prosecution authorities and Mr Köster

had cooperated for unlawful purposes. After the telephone call

on 7 November 1978 (see paragraph 17 above) the prosecuting

authorities knew that Mr Köster was again trying to keep his

promises in the hope that the sentence he himself faced would be

reduced (see paragraph 11 above). Notwithstanding the failure of

the Luxembourg plan and doubts about the lawfulness of Mr

Köster's methods, the prosecuting authorities had instructed the

police (see paragraph 17 above) to arrest the applicant and they

thus endorsed the kidnapping. The reimbursement of Mr Köster's

expenses (see paragraph 19 above) was evidence of this,

especially as the cost of chartering the plane had been

calculated in advance in order to ascertain whether it was within

the limits of what could be reimbursed.

Mr Stocké also complained of the way in which the

proceedings against Mr Köster were conducted (see paragraphs

20-30 above). As the authorities were anxious to ensure that

their "hatchet man" did not have to give explanations, for fear

that he might implicate those for whom he had been acting, they

had raised innumerable obstacles. They had attempted to deprive

the applicant of any influence on the proceedings by letting the

processing of his application to join the proceedings as a civil

party seeking damages drag on for months and endeavoured to

restrict his right to inspect the file by unlawfully retaining in

their possession a number of documents. Furthermore, the

Minister of Justice of Rhineland-Palatinate had decided not to

discontinue the proceedings only after a strong protest from

Mr Stocké. Lastly, by their procrastination the German

authorities had allowed the proceedings to become time-barred

(see paragraphs 41-43 above), thus rewarding the kidnapper for

his assistance.

48. The Government denied these allegations. Not only had the

authorities not been warned of Mr Köster's intentions but they

had done their best to clarify the situation.

To begin with, no plan to kidnap Mr Stocké had been drawn up

at the meeting in the office of Mr Wilhelm, a public prosecutor,

in the autumn of 1978 (see paragraph 11 above). The authorities

wanted to obtain information that would help them to trace Mr

Stocké, who had absconded. Although they had agreed to the

proposal to have him expelled from Luxembourg, they had had to

abandon this idea when they became aware of the legal obstacles

(see paragraph 13 above). Furthermore, the prosecuting

authorities had not learned of the arrest complained of until the

following day (see paragraph 19 above). Lastly, Mr Köster had

been reimbursed for his expenses but had not received any

remuneration.

Admittedly, a number of factors might suggest that the

prosecuting authorities and certain police officers had acted in

collusion with Mr Köster, but the prosecution had made meticulous

inquiries; they had brought charges against three policemen and

both pilots and had appealed against the Frankenthal Regional

Court's decision of 26 July 1983 not to commit them for trial

(see paragraph 26 above). The Zweibrücken Court of Appeal had

thoroughly examined the evidence before it, including the

statements of the principal witnesses, and had concluded that

there were not sufficient grounds for suspecting the accused

pilots and policemen of having committed the offence in question

(see paragraph 27 above).

As to Mr Köster, the German judicial authorities had

"neither shielded him nor dealt leniently with him". He was

arrested in February 1988 (see paragraph 30 above) and charged

with false imprisonment a month later (see paragraph 41 above).

The prosecution had immediately appealed against the Frankenthal

Regional Court's decision not to proceed to trial (see paragraphs

41-42 above); they had not discontinued the proceedings, although

an additional penalty for false imprisonment would not have made

much difference to the sentence to be served by Mr Köster, who

had already been sentenced to nine years' imprisonment for other

offences.

49. The Court notes at the outset that the applicant was induced

by a trick to board a plane chartered by Mr Köster (see paragraph

18 above), although he had been warned that they were going to

fly over a small part of German territory (see paragraph 27

above). After being arrested by the German police immediately

after the plane landed at Saarbrücken (see paragraphs 18-19

above), he lodged a complaint in France (see paragraph 33 above)

and in the Federal Republic of Germany, alleging false

imprisonment.

50. In a letter of 30 October 1980 the public prosecutor's

office in Strasbourg informed the office in Kaiserslautern that

it had discontinued the proceedings initiated on the complaint,

as no offence had been committed on French soil; the inquiries

that had been made had shown that the applicant had boarded the

plane of his own free will and not under duress (see paragraph 33

above).

On 6 April 1984 the Zweibrücken Court of Appeal upheld the

Frankenthal Regional Court's decision not to commit the two

pilots and the three policemen for trial on a charge of aiding

and abetting false imprisonment. In particular, it held that

their claim not to know anything about Mr Köster's plan had not

been disproved (see paragraph 27 above).

51. The Commission examined nine witnesses, three of whom, under

the domestic legal system, had relied on the protection of

Article 55 of the German Code of Criminal Procedure (see

paragraph 23 above). Three members of the Commission, delegated

for the purpose, heard evidence on 4 July 1988 from two

prosecutors and a policeman concerning the nature and extent of

the contacts between the prosecuting authorities and Mr Köster,

and on 15 September 1988 from four other policemen and two of the

three persons who had already appeared in July 1988. Lastly, on

16 October 1988 two other policemen answered questions about

specific aspects of the applicant's assertions. They all denied

having known about Mr Köster's plan to bring Mr Stocké back to

the Federal Republic of Germany against his will or having agreed

to such a plan being carried out; the Commission did not consider

their evidence to be inconsistent or unreliable.

Neither the facts found by the Commission nor the

circumstances of the case as a whole established that the

cooperation that there had unquestionably been between the German

prosecuting authorities and Mr Köster had extended to "unlawful

activities abroad such as [returning] the applicant against his

will from France to the Federal Republic of Germany".

52. On 15 June 1990 Mr Stocké made an application to the Court

(see paragraph 6 above), which he reiterated at the public

hearing, for five witnesses to be called, four of whom had not

been heard by the Commission. In his observations as to whether

such evidence should be heard, the Delegate of the Commission

expressed the view that the Commission had taken all the evidence

necessary to carry out its task. The Agent of the Government

objected to the granting of the application.

53. The Court recalls that under the Convention system, the

establishment and verification of the facts is primarily a matter

for the Commission (Articles 28 § 1 and 31). Accordingly, it is

only in exceptional circumstances that the Court will use its

powers in this area.

In the light of this, having regard to the conclusions

reached by the French and German authorities, after thorough

investigations, to the evidence of the numerous witnesses already

heard by the Commission as set out in its report in a summary

whose accuracy has not been challenged, and to the fact that the

Commission deemed it unnecessary to hear further evidence, the

Court sees no reason to entertain the applicant's request.

54. Like the Commission, the Court considers that it has not

been established that the cooperation between the German

authorities and Mr Köster extended to unlawful activities abroad.

Accordingly, it does not deem it necessary to examine, as

the Commission did, whether, if it had been otherwise, the

applicant's arrest in the Federal Republic of Germany would have

violated the Convention.

55. In conclusion, the Court finds that there has been no

violation of Article 5 or Article 6 (art. 5, art. 6).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no breach of Articles 5 and 6

(art. 5, art. 6).

Done in French and in English, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 19 March

1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André Eissen

Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention

and Rule 53 § 2 of the Rules of Court, the concurring opinion of

Mr Matscher is annexed to this judgment.

Initialled: R.R.

Initialled: M.-A.E.

CONCURRING OPINION OF JUDGE MATSCHER

(Translation)

I voted in favour of finding that there had been no

violation, on the ground that, notwithstanding doubts about the

unfolding of certain events, no violation had been made out.

I also agreed with the Court's decision not to hear further

witnesses (or to hear again the witness already heard by the

Commission), because in view of the circumstances of the case

and, in particular, the time which had elapsed since the events

complained of (twelve years!), further inquiries into the facts

would not, in my view, have helped to throw any light on the

matters remaining in doubt.