Application No. 13611/88

Klaus CROISSANT

against

THE FEDERAL REPUBLIC OF GERMANY

REPORT OF THE COMMISSION

(adopted on 7 March 1991)

TABLE OF CONTENTS

                                                                Page

I.      INTRODUCTION

        (paras. 1 - 18) ......................................     1

        A.      The application

                (paras. 2 - 5) ...............................     1

        B.      The proceedings

                (paras. 6 - 13) ..............................     1

        C.      The present Report

                (paras. 14 - 18) .............................     2

II.     ESTABLISHMENT OF THE FACTS

        (paras. 19 - 28) .....................................     4

        A.      The particular circumstances of the case

                (paras. 19 - 27) .............................     4

        B.      Relevant domestic law

                (para. 28) ...................................     6

III.    OPINION OF THE COMMISSION

        (paras.  29 - 48) ....................................     8

        A.      Complaint declared admissible

                (para. 29) ...................................     8

        B.      Points at issue

                (para. 30) ...................................     8

        C.      The complaint relating to the costs

                caused by the appointment of the two

                main ex officio counsel

                (paras. 31 - 37) .............................     8

                Conclusion (para. 38) ........................    10

        D.      The complaint relating to the costs

                caused by a third ex officio counsel

                appointed without the applicant's consent

                (paras. 39 - 45) .............................    10

                Conclusion (para. 46) ........................    12

        E.      Recapitulation

                (paras. 47 - 48) .............................    12

        Dissenting Opinion of Messrs.  J.A. Frowein,

        A. Weitzel, H.G. Schermers and Mrs.  J. Liddy .........    13

        Separate Concurring Opinion of Mr.  S. Trechsel .......    14

APPENDIX I      :  HISTORY OF THE PROCEEDINGS ................    15

APPENDIX II     :  DECISION ON THE ADMISSIBILITY .............    16

I.    INTRODUCTION

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.      The application

2.      The applicant, Klaus Croissant, a German citizen born in

1931, is practising as a lawyer in Berlin.  In the proceedings before

the Commission he is represented by Ms.  Sybille M. Meier and Mr.  Klaus

Eschen, both lawyers practising in Berlin.

3.      The application is directed against the Federal Republic of

Germany.  The German Government are represented by their Agent, Mr.  Jens

Meyer-Ladewig, Ministerialdirigent at the Federal Ministry of Justice.

4.      The case concerns the imposition on the applicant, in

connection with his conviction of having supported a criminal

organisation, of the costs caused by the appointment at his request of

two ex officio defence counsel, and the further appointment, without

his consent, of a third ex officio defence counsel.

5.      The applicant complains that, although he was qualified for

and granted legal aid in the criminal proceedings against him, he was

eventually ordered to pay the costs caused by the appointment of ex

officio counsel.  He considers that legal aid within the meaning of

Article 6 para. 3 (c) of the Convention is granted once and forever.

Therefore this provision is violated if, after conviction, the

defendant is ordered to pay the costs caused by his defence.

        In any event he considers it to be unreasonable and

inequitable that the courts also imposed on him the costs caused

by a supplementary ex officio counsel who was appointed against the

applicant's will for the purpose of securing the trial.  In this

respect he invokes Article 6 paras. 1 and 3 (c) of the Convention.

B.      The proceedings

6.      The application was introduced on 3 December 1987 and

registered on 15 February 1988.

7.      On 4 July 1988 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to submit

observations in writing on the admissibility and merits of the

application.

        The Government's observations were submitted on 2 December 1988,

after an extension of the time-limit.  The applicant submitted his

reply on 3 January 1989.

8.      On 9 May 1989 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application.

9.      The hearing took place on 8 December 1989.  The applicant, who

attended the hearing in person, was represented by Mr.  K. Eschen.  The

respondent Government were represented by Mr.  J. Meyer-Ladewig, Agent,

and Mr.  Udo Heisseler, Presiding Judge at the Stuttgart Regional Court

as well as Mr.  David Connor, Federal Ministry of Justice, as Advisers.

10.     Following the hearing the Commission declared the application

admissible.

11.     The text of this decision was on 19 March 1990 communicated to

the parties who were invited to submit any additional observations or

further evidence which they wished to put before the Commission.

12.     Written observations on the merits were submitted by the

Government on 3 May 1990.  The applicant's representative, Mr.  Eschen,

submitted observations in reply on 29 May 1990.

13.     After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement.  In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C.      The present Report

14.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

             MM.  C. A. NØRGAARD, President

                  J. A. FROWEIN

                  S. TRECHSEL

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             Mr.  F. MARTINEZ

             Mrs.  J. LIDDY

15.     The text of this Report was adopted on 7 March 1991

and is now transmitted to the Committee of Ministers of the Council of

Europe, in accordance with Article 31 para. 2 of the Convention.

16.     The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i)      to establish the facts, and

ii)     to state an opinion as to whether the facts found

        disclose a breach by the State concerned of its

        obligations under the Convention.

17.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

18.     The full text of the parties' submissions, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.      The particular circumstances of the case

19.     On 16 February 1979 the applicant was convicted by the

Stuttgart Regional Court (Landgericht) of having supported a criminal

association.  He was sentenced to two years and six months'

imprisonment.  Furthermore the applicant was disqualified to practise

as a lawyer for a period of four years.  He was also ordered to bear

the costs of the proceedings including his necessary expenses.  His

appeal on points of law (Revision) was rejected by the Federal Court

(Bundesgerichtshof) on 14 November 1979.  The trial in first instance

had started on 9 March 1978 and comprised some 70 days of hearing.

20.     The applicant was mainly defended by two lawyers who first

acted as his chosen defence counsel and then, on 2 August 1976, were

appointed at his request as his legal aid counsel.  The defence was

also represented by three further chosen counsel, who, however, did

not conduct the applicant's defence in a continuous manner at the

trial.

21.     On 11 January 1978 the Regional Court appointed a third

official defence counsel, Mr.  H.  The applicant raised objections

against the appointment of Mr.  H., requesting that another lawyer,

Mr.  K., be appointed instead.  These objections were rejected by the

Court on 1 March 1978.  The Court stated that the appointment of a

third official defence counsel was necessary in view of the complexity

and difficulty of the matter and the possibly long duration of the

trial.  It served to ensure that the applicant was adequately defended

throughout the trial.  While it was true that, in principle, the

choice of an ex officio counsel had to take into account whether this

counsel was apt to establish a relationship of personal confidence

with the defendant, the applicant was already defended by several

chosen and ex officio counsel whom he fully trusted.  In these

circumstances the fact alone that Mr.  H. was an active member of the

Social Democratic Party (SPD) did not constitute a reason to fear that

he would in any way negatively affect the relationship between the

defence counsel altogether and the applicant.  Moreover, it was

recommended in legal writing that a lawyer, appointed as ex officio

counsel for the safeguarding of the trial, should only intervene in

the defence when this was necessary.  On the other hand Mr.  K., whom

the applicant preferred as ex officio counsel, was defending an

ex-employee of the applicant in other proceedings and it could not be

excluded that circumstances would arise in those proceedings which

could cause a conflict of interests.

22.     This decision was confirmed by the Stuttgart Court of Appeal

(Oberlandesgericht) on 6 March 1978.  This Court likewise considered

that the applicant's interests were sufficiently protected in that he

was defended by several lawyers of his choice, appointed by him or ex

officio, whom he particularly trusted.  It was also advantageous that

Mr.  H. was admitted to practice in the district of the Regional Court.

The appointment of a third ex officio counsel was as such found

unobjectionable being justified in view of the complexity and

difficulty of the case and the unforeseeable length of the proceedings.

Mr.  H.'s request to be discharged was unjustified as there was nothing

to show that the applicant would not be defended by all his chosen and

ex officio counsel, including Mr.  H., in an effective and adequate

manner.

        The applicant named Mr.  K. as additional chosen counsel, but

K. was not admitted as an accused cannot have more than three chosen

counsel.

23.     On 27 December 1979 the Treasury of the Stuttgart Regional

Court (Gerichtskasse) fixed the costs of the proceedings in the total

amount of DM 239,439.30, including DM 209,683.20 for fees and expenses

paid to the three official defence counsel.  The applicant lodged an

objection (Erinnerung) against this bill (Kostenrechnung) arguing that

free legal aid in the sense of Article 6 para. 3 (c) of the Convention

was granted once and forever.  Referring to the Commission's case-law

(No. 9365/81, Dec. 6.5.82, D.R. 28 p. 229 and No. 9394/81, Dec.

6.5.82, unpublished) the Stuttgart Regional Court rejected the

objection on 20 November 1986 as being unfounded.

24.     The applicant lodged an appeal (Beschwerde) to the Stuttgart

Court of Appeal.  He maintained his arguments and added that they were

particularly relevant in respect of the third defence counsel, Mr.  H,

who had been appointed against his will.  The appeal was dismissed on

30 April 1987.  The Court of Appeal confirmed the Regional Court's

reasoning and added that the appointment of a third official

defence counsel had been necessary to ensure an adequate defence,

given the importance and complexity of the case and the foreseeable

long duration of the proceedings.  It was objectively justified that

the presiding judge, by appointing a third official defence counsel in

the interest of a proper and speedy administration of justice, ensured

that the trial could be carried through without hindrance.

25.     The applicant's constitutional complaint (Verfassungsbeschwerde)

was rejected on 23 June 1987 by a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) as offering no

prospects of success.  The Court accepted the interpretation of

Article 6 para. 3 (c) of the Convention by the Commission and stated

that the reason for the obligation of a convicted person to pay the

costs of the proceedings is that he caused them by his own behaviour.

While the principle of a fair trial required that an indigent accused

obtained free legal aid if necessary, it did not exclude that the

costs caused thereby be imposed on him later in the case of his

conviction.  The law on costs offered other possibilities of taking

into account subsisting economic difficulties of the convicted (such

as payment facilities, protection against execution).  Finally, the

appellate court's finding, that the appointment of a third official

defence counsel was necessary in view of the complexity of the matter

and the foreseeable long duration of the criminal proceedings, did not

disclose any arbitrariness.

26.     The applicant's request for a remission was to no avail.

Requests for a respite (Stundung) were likewise rejected by the

District Court (Amtsgericht).  A further appeal (weitere Beschwerde)

concerning the latest request was however successful in third instance

before the Stuttgart Court of Appeal which on 18 August 1989 quashed

the decisions appealed from.  The Court pointed out that the

possibility of a respite mainly served the purpose of furthering the

rehabilitation of the debtor concerned who has already served his

sentence.  Therefore the applicant's submission that the denial of a

respite, with the possible consequence of having to make an oath of

disclosure (Offenbarungseid), would negatively affect his efforts to

build up a law practice, had to be taken into account as well as his

alleged readiness to allow a member of the Berlin Bar to examine his

documents and records with a view to assessing his income.   Also the

possibility proposed by the Federal Ministry of Justice that instead

of an oath of disclosure the applicant should make a more confidential

declaration on oath before a public notary had to be examined.  Even

if the granting of a respite would, in practice, have the effect that

a great part of the debt would never be paid at all, this did not

justify a refusal, as in any event the total sum was foreseeably not

recoverable.  Consequently the question as to whether the applicant

should be granted a respite in the form of the possibility to pay

moderate instalments, and if so in what amount, had to be examined

again.

27.     According to the uncontested statements of the Government,

until October 1989 the applicant has not effected any payments in

relation to the debts resulting from the criminal proceedings in

question.  On his own initiative he has been paying 50 DM per month

since October 1989.

B.      Relevant domestic law

28.     The following provisions of the German Code of Criminal

Procedure (Strafprozessordnung - StPO) are of relevance in the present

case:

        "Chapter II. Defence

        Sec. 137 (Choice of defence counsel)

        (I) The accused (Beschuldigter) can be assisted by a

        defence counsel at any stage of the proceedings.  The

        number of chosen defence counsel may not exceed three.

        ...

        Sec. 140 (Necessary defence)

        (I) The participation of a defence counsel

        is necessary

        1) if the trial in first instance is held

        before the Court of Appeal or the Regional Court;

        ...

        Sec. 141 (Appointment of defence counsel)

        (I) In the cases of Sec. 140 (I) and (II) a defence counsel

        has to be appointed for the person charged (Angeschuldigter),

        who is not yet represented by counsel, as soon as he is

        invited, in accordance with Sec. 210, to submit observations

        on the indictment.

        (II) Should the conditions of necessary defence arise later,

        a defence counsel has to be appointed immediately.

        (III) The defence counsel can already be appointed in the

        pre-trial proceedings. ...

        (IV) The presiding judge of the court dealing with the case

        or competent to carry out the trial decides on the

        appointment.

        Sec. 142 (Choice of defence counsel)

        (I) The defence counsel is chosen by the court's presiding

        judge if possible among the lawyers admitted to plead in

        one of the courts of the district.  The accused (Beschuldigter)

        shall be given the opportunity to name a lawyer within a

        predetermined time-limit.  The presiding judge appoints the

        lawyer named by the accused unless there are important reasons

        not to do so.  ...

        Sec. 145 (Non-appearance of defence counsel)

        (I) If in a case of necessary defence the defence counsel

        does not attend a trial hearing, excuses himself for absence

        or refuses to defend, the presiding judge shall immediately

        appoint another defence counsel for the accused.  The court

        may, however, also decide to adjourn the trial.

        ...

        Book Seven - Chapter 2 - Costs of Proceedings

        Sec. 465

        (I) The costs of the proceedings have to be borne by the

        accused to the extent they were caused by an offence

        which he is found to have committed and be guilty of. ... "

III.  OPINION OF THE COMMISSION

A.      Complaint declared admissible

29.     The complaint declared admissible is that, in connection with

his conviction, the courts imposed on the applicant both the costs

caused by the appointment at his request of two ex officio defence

counsel and those caused by the appointment without his consent of a

third official counsel.

B.      Points at issue

30.     The Commission is accordingly required to state its opinion

on whether there has been a violation of Article 6 para. 1, read in

conjunction with para. 3 (c) (Art. 6-1+6-3-c) of the Convention

        - in respect of the imposition of the costs of two ex officio

counsel who were appointed with the applicant's consent;

        - in respect of the imposition of the costs of a third

ex officio counsel appointed without his consent.

C.      The complaint relating to the costs caused by the

        appointment of the two main ex officio defence counsel.

31.     Article 6 para. 1 and para. 3 (c) (Art. 6-1, 6-3-c) provide:

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

        against him, everyone is entitled to a fair and public

        hearing ..."

        ...

        "3.   Everyone charged with a criminal offence has the

        following minimum rights:

        ...

        (c) to defend himself in person or through legal

        assistance of his own choosing or, if he has not sufficient

        means to pay for legal assistance, to be given it free when

        the interests of justice so require."

32.     The applicant refers to a decision of the Court of Appeal

of Düsseldorf (OLG Düss., 21.3.85, publ. 1985, p. 370) which

interprets Article 6 para. 3 (c) (Art. 6-3-c) of the Convention to the

effect that free legal aid is granted once and for all.  He submits

that, unlike the defendant who can afford to pay and therefore choose

his defence counsel, the penniless defendant must, if legal aid is

granted, accept a defence counsel chosen by the authorities.

Consequently he is under all circumstances in a disadvantageous

position.  The applicant therefore rejects the argument that a legal

aid defendant should, in case of his conviction, have to bear the

costs of his defence just as any other convicted person who was

assisted by chosen defence counsel provided that his financial

situation has improved and allows him to pay.  He also argues that a

penniless accused who is defended by an ex officio counsel will be

inclined to limit his defence in order to avoid expenses which may

later have to be paid by him.

33.     The Government agree with the Commission's interpretation of

Article 6 para. 3 (c) (Art. 6-3-c) to date that it is not unfair to

require a convicted person who had been defended by an ex officio

counsel to pay the costs caused thereby if his/her financial situation

allows payment.  They submit that this is also the prevailing opinion

in German jurisprudence which was accepted by the Federal

Constitutional Court in the present case.

34.     The Commission, in accordance with its decisions on the

admissibility of two previous applications raising the same issue

(Dec. 6.5.82, No. 9365/81, D.R. 28 p. 229 [230], and No. 9394/81,

unpublished), first notes that the European Court of Human Rights held

in its judgment of 28 November 1978 in the case of Luedicke, Belkacem

and Koç (Series A no. 29 para. 40) that the term 'free' in the context

of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention, which

provides for free assistance of an interpreter if the defendant cannot

speak or understand the language used in court, denotes a once and for

all exemption or exoneration.  The Court stressed, however, in this

judgment that it was not called on to interpret sub-paragraphs (c) and

(d) of Article 6 para. 3 (Art. 6-3-c, 6-4-d) and that it did not

intend to establish whether and for which reasons and under what

conditions the expenses associated with these provisions may be

awarded against or left to be borne by the accused after his

conviction (loc. cit., para. 44).

35.     The judgment cited does therefore not imply that the guarantee

of free legal assistance must be interpreted in an identical manner to

the guarantee of free assistance of an interpreter.  The latter

guarantee is phrased in unconditional terms while free legal

assistance is only provided for under sub-paragraph (c) if the accused

'has not sufficient means to pay'.  In the Commission's opinion the

fact that sub-paragraph (e) of Article 6 para. 3 (Art. 6-3-e) does not

contain the qualifying condition 'if he has not sufficient means to

pay' purports to avoid that, in the case of the accused being obliged

to pay the costs of the proceedings after final conviction, an extra

burden be imposed on him for the only reason that he did not

understand the language of the court.

36.     The existence of the qualifying condition in sub-paragraph (c)

implies on the other hand, that the term 'free' in this context

signifies in principle a mere temporary exemption from costs, namely

during the trial while after final conviction it is maintained only as

long as the accused's insufficiency to pay the costs incurred through

legal assistance continues to exist.  The wording 'has not sufficient

means to pay' does not, in the Commission's opinion, refer solely to

the moment when the trial court decides whether or not free legal

assistance should be provided.  It is relevant also at the time when

the question is decided whether and to what extent the defendant has

to pay the costs of the proceedings.  For these reasons it is, in the

Commission's opinion, not contrary to Article 6 para. 3 (c)

(Art. 6-3-c) that the accused has to pay the costs of his legal aid

counsel after final conviction unless his means are insufficient.  In

other words the imposition of legal aid costs may under particular

circumstances only become unreasonable and incompatible with the aim

of sub-paragraph (c), where, for example, payment of the costs is

enforced regardless of the debtor's financial situation.

37.     As regards the particular circumstances of the present case

the Commission first observes that although sub-paragraph (c) does not

give the defendant a right to choose legal aid counsel (No. 6946/75,

Dec. 6.7.76, D.R. 6 p. 114; No. 8715/79, Dec. 16.7.82, unpublished)

the applicant even had the possibility to choose the two lawyers who

were eventually appointed, at his request, to act as his ex officio

counsel.  Consequently he was not in a disadvantageous position as

compared with a defendant who is not only free to choose but also able

to pay his defence counsel.  The applicant has not questioned the

necessity of being defended by two ex officio counsel in view of the

uncontested complexity and importance of the case against him.  Also it

has neither been alleged nor is there anything to show that the

applicant was not defended in an effective and adequate manner by

these two ex officio counsel.  The Commission further notes that

undisputedly the German law contains provisions which protect a

convicted person against compulsory execution in case he remains

unable to pay the costs of the criminal proceedings.  In fact,

according to the decision given by the Stuttgart Court of Appeal on

18 August 1989, the applicant will most likely be granted a respite

and never have to pay the total amount of costs due by him for the two

ex officio counsel appointed with his consent.

        Conclusion

38.     The Commission concludes unanimously that there has been no

violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention by

the imposition on the applicant of the costs caused by the appointment

with his consent of two legal aid defence counsel.

D.       The complaint relating to the costs caused by a third ex

         officio counsel appointed without the applicant's consent

39.     The applicant argues that a third official defence counsel was

appointed against his will for the only purpose of securing the trial,

i.e. of making sure that the proceedings could be brought to an end

even if the two other ex officio counsel were, for whatever reason,

not able to assume his defence throughout the trial.  It was

unreasonable and inequitable to impose on him the costs caused by an

official defence counsel who was only appointed in the public interest

of making sure that the trial could be terminated under all

circumstances.  Moreover an additional legal aid counsel appointed

without the consent of the defendant will normally abstain from taking

an active part in the defence, leaving it to the counsel who enjoys

the defendant's confidence, as otherwise he would act contrary to the

applicant's right to be defended in an adequate manner and to have a

fair trial.

40.     The Government reply that the appointment of a third official

defence counsel was in the interest of justice and would have even

encountered the applicant's approval had the choice of counsel by the

judicial authorities met his expectations.  The third counsel,

while appointed to secure the trial, also had to ensure that the

applicant's defence was adequate and effective.  Under German law the

applicant had to be defended at each hearing of the trial.  In view of

the complexity of the case and the expected length of the trial it was

therefore justified to appoint a third official defence counsel, who

contrary to the applicant's allegation actively participated in the

defence and who was easily available as he practised in the court

district.  Consequently there was no violation of the right to a fair

trial, nor did it violate Article 6 para. 3 (c) (Art. 6-3-c) to impose

the costs caused by the defence on the applicant as in any event

account was taken of his financial capacity to pay these costs.

41.     The Commission has considered whether the appointment of the

third counsel, with the resultant risk of high costs, violated the

rights of the applicant under the Convention.  The Convention is

intended to guarantee rights that are practical and effective.  This

is particularly relevant to defence rights in view of the prominent

place held in a democratic society by the right to a fair trial from

which flows the right to be defended by an ex officio counsel if the

interests of justice so require (Eur.  Court H.R., Artico judgment of

13 May 1980, Series A no. 37, p. 16 para. 33).  Therefore the

appointment of a sufficient number of counsel is not in itself

incompatible with the Convention.

42.     It is clear from the submissions of the parties that the third

official defence counsel was mainly appointed to ensure the proper

running of the trial.  It was feared that in view of the expected

length of the proceedings the principal defence counsel might not

always be available, whereas the applicable procedural law required

that the applicant be defended by counsel throughout the trial at each

hearing.  Therefore the participation of the third ex officio counsel

mainly served the purpose of being prepared for such an eventuality.

Nevertheless according to the Government's uncontested statements the

third ex officio counsel took an active part in the defence of the

applicant who, at that time, did not seem to question the

reasonableness of the appointment of a further defence counsel but

objected only to the choice by the trial court of the relevant

lawyer.  In these circumstances it cannot be found that the

appointment of a third ex officio counsel affected the applicant's

defence in a negative manner.

43.     The Commission has held above (paras. 32 - 38) that the

imposition of costs caused by legal aid counsel on the defendant in

case he is convicted is, in principle, compatible with Article 6

para. 3 (c) (Art. 6-3-c) unless his means are insufficient.  In other

words such imposition may constitute an unreasonable and

disproportionate burden if it is enforced regardless of the financial

situation of the person concerned depriving him of means of existence

and thus of any real chances to reintegrate into social life.

44.     It follows, however, from the uncontested statements of the

respondent Government and the documents submitted that so far the

applicant has been paying only 50 DM per month and his request for a

respite is still under consideration, the Stuttgart Court of Appeal

having stressed in its decision of 18 August 1989 that the possibility

of granting a respite would mainly serve the purpose of furthering the

rehabilitation of the debtor who has already served his sentence.

Therefore the Court of Appeal referred the applicant's request for a

respite back to the District Court for review with the instruction to

examine again whether, in the interest of the applicant's

rehabilitation, he could not be given the possibility of paying

moderate instalments (see para. 26 above).

45.     In these circumstances it cannot be found that the imposition

on the applicant of the costs for a third ex officio counsel led to a

situation which retrospectively had a negative effect on the

applicant's rights to a fair trial and an effective defence.

        Conclusion

46.     The Commission concludes, by seven votes to four, that there has

been no violation of Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention by the imposition on the applicant of the costs caused by

the appointment against his will of a third legal aid counsel.

E.      Recapitulation

47.     The Commission concludes unanimously that there has been no

violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention by

the imposition on the applicant of the costs caused by the appointment

with his consent of two legal aid defence counsel;

48.     The Commission concludes, by seven votes to four, that there has

been no violation of Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention by the imposition on the applicant of the costs caused by

the appointment against his will of a third legal aid counsel.

Secretary to the Commission                President of the Commission

     (H.C. KRÜGER)                             (C.A. NØRGAARD)

Dissenting Opinion of Messrs.  J.A. Frowein, A. Weitzel, H.G. Schermers

and Mrs.  J. Liddy

        We regret that we cannot follow the majority in their

interpretation of Article 6 para. 3 (c):

        It is clear from the submissions of the parties that the third

official defence counsel was mainly appointed in the public interest to

ensure the proper running of the trial.  It was feared that in view of

the expected length of the proceedings the principal defence counsel

might not always be available, whereas the applicable procedural law

required that the applicant be defended by counsel throughout the

trial at each hearing.  Therefore the participation of the third ex

officio counsel mainly served the purpose of being prepared for such

an eventuality.  However, it has not been alleged by the respondent

Government that the active intervention of the third ex officio

counsel in fact became necessary at any hearing on account of the

absence of all other defence counsel chosen by the applicant or

appointed at his request.  Consequently the services of this counsel,

even if he took an active part in the defence, were, from the

applicant's point of view, neither necessary nor required.  That the

applicant nevertheless tried to influence the choice of the third ex

officio counsel is understandable as he had no confidence in Mr.  H.

        The Commission has held that the imposition of costs caused by

legal aid counsel on the defendant in case he is convicted is in

principle compatible with Article 6 para. 3 (c).  The question

nevertheless arises whether the Convention does not contain limits in

this respect.  We are of of the opinion that it does.  We interpret

the guarantee in Article 6 para. 3 (c) as primarily protecting the

accused in the trial.  However, we also find a certain protection in

the Article as far as financial consequences are concerned.  Financial

consequences of the kind in question in the present case can only be

considered as compatible with Article 6 para. 3 (c) where they are

reasonably related and proportionate to the purposes of the provision,

namely to ensure an effective defence even to the indigent defendant.

Such a relationship cannot be established where a substitute defence

counsel, appointed against the will of the accused, was not in fact

necessary for the defence.  In such a case the subsequent imposition of

the costs on the former accused is incompatible with the aims and

purposes of Article 6 para. 3 (c) because no justifying link can be

established between the financial obligation and the previous

necessity during the trial to ensure an effective defence.

        In such circumstances the right to a fair trial under

Article 6 para. 1 may also be affected by the decision to appoint the

substitute counsel.  An accused may conceivably have to take decisions

about his defence merely to limit the costs he might have to bear.

However, the applicant has not in fact alleged that this was the case.

He argues that his right to a fair trial would have been breached had

the third counsel acted against the line of defence preferred by his

chosen defence counsel.  This situation, however, did not arise.  The

Commisssion therefore finds that the applicant's right to a fair trial

has not been affected because of any special consequences generated by

the appointment of the third counsel.

        This leaves the question whether the violation of Article 6

para. 3 (c) should also be considered to be a violation of Article 6

para. 1, because Article 6 para. 3 (c) is, according to para. 1 first

sentence, one of the minimum rights for guaranteeing a fair trial.

However, in the special circumstances of the present case, we do not

find that this has been established.  The violation of Article 6

para. 3 (c) here lies in a measure which does not concern the specific

aim of the rule enshrined in that general provision.  It is not the

guarantee of an effective defence but the rule circumscribing the

limit of financial burdens ensuing from that guarantee which has been

violated.

        We have therefore voted for the violation of Article 6 para. 3 (c).

Separate Concurring Opinion of Mr.  S. Trechsel

        While being in agreement with the majority of the Commission

in saying that the imposition of costs caused by the third ex officio

counsel who was appointed without the applicant's consent does not constitute

a violation of Article 6 para. 3 (c) of the Convention, I base my

opinion on a different reasoning.

        In my view, paragraph 3 of Article 6 must be seen, as the word

"notamment" in the French text indicates, as a lex specialis with

regard to paragraph 1 of the same Article, insofar as it enshrines the

right to a fair trial.  This is also the approach taken by the Court

(see, e.g., the Bönisch judgment of 6 May 1985, Series A no. 92,

pp. 14-15 para. 29, and the Unterpertinger judgment of 24 November 1986,

Series A no. 110, p. 14 para. 29).  It follows that any problem

arising under Article 6 para. 3 (a) - (e) could only be in violation

of one of those guarantees if and insofar as it affects the fairness

of the proceedings in question.

        In the present case, however, it is established that the right

to a fair trial was not affected.  There is no indication permitting

the assumption that due to the threat of costs the applicant took any

decisions jeopardising his effective defence.  In particular, he was

not prevented from choosing two counsel in whom he had confidence.

        I do not exclude that, as a general principle, the imposition

of costs caused by the nomination of an ex officio counsel against the

will of the accused might have an effect on the fairness of the

trial.  This might be the case, for example, where the accused

disposes of funds permitting the payment of only one counsel.  If the

appointment of an ex officio counsel against the will of the accused

binds those funds, the right of the accused to his own chosen legal

assistance may in fact be impaired.

        In the present case, however, only the financial burden

imposed upon the applicant after the proceedings is at issue.  It is

for this reason that I have come to the conclusion that Article 6

para. 3 (c) was not violated in the present case.

APPENDIX I

HISTORY OF PROCEEDINGS

Date                            Item

______________________________________________________________________

3 December 1987                 Introduction of the application

15 February 1988                Registration of the application

Examination of Admissibility

4 July 1988                     Commission's decision to invite

                                the Government to submit

                                observations on the

                                admissibility and merits of the

                                application

2 December 1988                 Government's observations

30 January 1989                 Applicant's observations in reply

8 December 1989                 Commission's decision to hold

                                an oral hearing

                                Oral hearing on admissibility and

                                merits, Commission's decision to

                                declare the application in part

                                admissible and in part inadmissible

10 February 1990                Commission approves text of decision

                                on admissibility

Examination of the merits

19 March 1990                   Decision on admissibility communicated

                                to the parties

3 May 1990                      Government's observations on the merits

29 May 1990                     Applicant's observations on the merits

12 May 1990                     Commission's consideration of the

                                state of proceedings

26 February 1991                Commission's deliberations on the

                                merits and final vote

7 March 1991                    Adoption of the Report