Lexploria

Application No. 11394/85

Aziz AKDOGAN

against

the FEDERAL REPUBLIC OF GERMANY

REPORT OF THE COMMISSION

(adopted on 5 July 1988)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 19) ...................................... 1

A. The application

(paras. 2 - 4) ............................... 1

B. The proceedings

(paras. 5 - 14) .............................. 1

C. The present Report

(paras. 15 - 19) ............................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 20 - 37) ..................................... 3

A. The particular circumstances of the case

(paras. 20 - 25) ............................. 3

B. Relevant domestic law

(paras. 26 - 37) ............................. 4

1. Act on Regulatory Offences

(paras. 26 - 36) .......................... 4

2. Road Traffic fines

(para. 37) ................................ 6

III. SUBMISSIONS OF THE PARTIES

(paras. 38 - 45) ..................................... 8

A. The applicant

(paras. 38 - 41) ............................. 8

B. The Government

(paras. 42 - 45) ............................. 8

IV. OPINION OF THE COMMISSION

(paras. 46 - 56) ..................................... 10

A. Point at issue

(para. 46) ................................... 10

B. The applicant's status as a "victim"

(paras. 47 - 48) ............................. 10

C. Applicability of Article 6 para. 3 (e)

of the Convention (paras. 49 - 52) ........... 10

D. Compliance with Article 6 para. 3 (e)

(paras. 53 - 56) ............................. 11

APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 12

APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 13

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 is a Turkish citizen, born in 1940 and living in

Heilbronn (Federal Republic of Germany). He was represented before

the Commission by Mr. N. Wingerter, a lawyer practising in Heilbronn.

3. The application is directed against the Federal Republic of

Germany. The respondent Government were represented by their Agents,

Mrs. I. Maier, Ministerialdirigentin, succeeded by Mr. J. Meyer-Ladewig,

Ministerialdirigent, both of the Federal Ministry of Justice.

4. The applicant complains that, in proceedings concerning a

regulatory offence (Ordnungswidrigkeit), he was ordered to pay the

fee of the interpreter amounting to DM 59.90. He invokes Article 6

para. 3 (e) of the Convention.

B. The proceedings

5. The application was introduced on 27 December 1984 and

registered on 15 February 1985.

6. On 8 May 1985 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 state

before 28 June 1985 whether or not, having regard to the judgment of

the European Court of 21 February 1984 in the Öztürk case (Eur. Court

H.R., Series A no. 73), they would wish to submit written observations

on the admissibility and merits of the present application and, in the

affirmative, to submit such observations before 2 August 1985.

7. The Government replied that they wished to submit

observations. Following an extension of the time-limit their

observations of 20 September were received on 24 September 1985.

The applicant's reply of 1 October was received on 3 October 1985.

8. On 12 December 1985 the Commission considered the state of

proceedings. On 5 March 1986 it declared the application admissible.

9. On 27 March 1986 the text of this decision was communicated to

the parties who were invited to submit any additional observations on

the merits by 23 May 1986.

10. No such observations were received within the above time-limit

but, in submissions of 4 July which arrived on 10 July 1986, the

Government requested the Commission to reject the application under

Article 29 of the Convention. The applicant's reply to the request

was dated 11 August and arrived on 13 August 1986.

11. The Commission considered the parties' submissions on

10 December 1986. It found no basis for the application of Article 29

of the Convention.

12. On 11 December 1987 the Commission resumed its examination of

the application in the light of the judgment given by the Court in the

Lutz case on 25 August 1987 (Eur. Court H.R., Series A no. 123 - A).

13. On 5 July 1988 the Commission took their final vote on the

case.

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

accordance with Article 28 para. b of the Convention, placed itself

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

settlement of the case. In the light of the parties' reaction, the

Commission now finds that there is no basis upon which such a

settlement can be reached.

C. The present Report

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

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

16. The text of this Report was adopted on 5 July 1988 and

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

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

17. The purpose of the Report, pursuant to Article 31 para. 1

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.

18. 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.

19. 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

20. On 7 May 1981 the Heilbronn District Administration

(Landratsamt) imposed on the applicant a fine (Bussgeld) of DM 75.-

for breach of the Road Traffic Regulations (Strassenverkehrsordnung).

He had caused a traffic accident while driving his motor vehicle. On

negotiating a left turn he had collided with an oncoming vehicule.

21. The applicant lodged an objection (Einspruch) against this

decision. At the hearing before the District Court (Amtsgericht) of

Heilbronn on 7 October 1981 an interpreter was also present. After

the three witnesses summoned had given their evidence the applicant

withdrew his objection. The decision of 7 May 1981 accordingly became

final (rechtskräftig).

22. The District Court directed that the applicant should bear the

court costs and his own expenses. On 8 October 1981 the District

Court Cashier's Office fixed the amount to be paid by the applicant,

of which DM 59.90 represented the interpreter's fee.

23. The applicant entered an appeal (Erinnerung) against the bill

of costs with regard to the interpreter's fee. The District Court

dismissed the appeal on 27 September 1982. It considered that

Article 6 para. 3 (e) of the Convention was not applicable to

proceedings relating to regulatory offences since these proceedings did

not form part of the criminal law.

24. On 16 November 1982 the bill of costs was paid by the

applicant's legal insurers (ARAG Düsseldorf).

25. The applicant lodged a constitutional complaint (Verfassungs-

beschwerde) against the District Court's decision of 27 September 1982.

On 25 June 1984 a group of three judges of the Federal Constitutional

Court (Bundesverfassungsgericht) refused to accept the complaint for

decision on the ground that it did not offer a sufficient prospect of

success.

This decision, which was notified to the applicant's lawyer on

9 July 1984, may be summarised as follows: An alleged violation of

the Convention cannot be raised in a constitutional complaint. The

Federal Constitutional Court does not apply the guarantees of a fair

hearing contained in Article 6 of the Convention. But it would be

contrary to the right to a fair trial based on the rule of law as

guaranteed by Article 2 para. 1 in conjunction with Article 20 para. 3

of the Basic Law (Grundgesetz) to degrade an accused, who is not

sufficiently conversant with the German language, to be the subject of

proceedings who cannot be understood. By the appointment of an

interpreter, the accused must be enabled to understand the essential

steps of the proceedings concerning him and to make himself

understood. The Court further stated that the obligation of a

convicted person under Article 465 para. 1, first sentence, of the

Code of Criminal Procedure (Strafprozessordnung) to bear the costs of

the proceedings is compatible with the Basic Law. It also observed

that regulatory law differs in essential points from the general

criminal law. The central sphere of criminal law comprises all

important offences. The sphere of regulatory offences comprises

violations of the law which, according to the general concepts of

society, were not deemed (criminally) punishable (strafwürdig). It

is the legislature's task to draw the exact border line with binding

effect and in accordance with the constitutional order. The

legislature's decision and the relevant procedural regulations are

only to a certain extent subject to the control of the Federal

Constitutional Court. The interpretation and application of ordinary

law - the provisions concerning procedural costs and expenses - lies

within the competence of the ordinary courts and cannot be examined by

the Federal Constitutional Court. This Court is not called upon to

decide on the question which of two interpretations, which are

possible under ordinary law, should be given preference or whether any

other interpretation appears possible. The Federal Constitutional

Court decides solely on alleged violations of specific constitutional

law, as for instance the prohibition of arbitrariness. But the

specific principle of equality laid down in Article 3 para. 3 of the

Basic Law does not include the right to financial compensation for

linguistic difficulties.

B. Relevant domestic law

1. Act on Regulatory Offences

26. The subject of "regulatory offences" is governed by the Act

of 24 May 1968 on Regulatory Offences (Gesetz über Ordnungswidrigkeiten),

in its version of 1 January 1975 ("the 1968/1975 Act"). The purpose

of this legislation was to remove petty offences from the sphere of

the criminal law. Included in this category were road traffic

contraventions. Commission of such contraventions had given rise to

liability to a fine (Geldstrafe) or imprisonment (Haft). Section 3 (6)

of the Introductory Act of 24 May 1968 (Einführungsgesetz zum Gesetz

über Ordnungswidrigkeiten) classified them as "Ordnungswidrigkeiten"

and henceforth made them punishable only by fines (Geldbussen) not

deemed to be criminal by the legislature.

a) General provisions

27. Section 1 (1) of the 1968/1975 Act defines a "regulatory

offence" as an unlawful and reprehensible act, contravening a legal

provision which makes offenders liable to a fine. The fine cannot be

less than DM 5 or, as a general rule, more than DM 1,000 (section 17 (1)).

The amount of the fine is fixed in each case by reference to the

seriousness of the offence, the degree of misconduct attributable to

the offender and, save for minor offences, the offender's financial

circumstances (section 17 (3)).

b) Prosecuting authorities

28. "Regulatory offences" are to be dealt with by the

administrative authorities designated by law, save insofar as the

1968/1975 Act confers the power of prosecution of such offences on the

public prosecutor and the trial and punishment of them on the courts

(sections 35 and 36).

c) Procedure in general

29. Subject to the exceptions laid down in the 1968/1975 Act, the

provisions of the ordinary law governing criminal procedure - in

particular the Code of Criminal Procedure, the Judicature Act (Gerichts-

verfassungsgesetz) and the Juvenile Courts Act (Jugendgerichtsgesetz)

- are applicable by analogy to the procedure in respect of "regulatory

offences" (section 46 (1)). The prosecuting authorities have the same

rights and duties as the public prosecutor in a criminal matter unless

the 1968/1975 Act itself states otherwise (section 46 (2)).

Nevertheless, a number of measures permissibile in criminal matters

cannot be ordered in respect of "regulatory offences", notably arrest

and interim police custody (vorläufige Festnahme) (section 46 (3)).

30. The prosecution of "regulatory offences" lies within the

discretion (pflichtgemässiges Ermessen) of the competent authority,

which may terminate the prosecution at any time while the case is

pending before it (section 47 (1)). Once the case has been brought

before a court, power to direct a stay of proceedings rests with the

court; any such decision requires the agreement of the public

prosecutor and is final (section 47 (2)).

d) Administrative decision imposing a fine

31. Save insofar as the 1968/1975 Act provides otherwise, a

"regulatory offence" is punishable by an administrative decision

imposing a fine (Bussgeldbescheid; section 65).

The person concerned may lodge an objection within a period

which on 1 April 1987 was increased from one week to two weeks

(section 67). Unless they withdraw their decision, the administrative

authorities will then forward the file to the public prosecutor, who

will submit it to the competent District Court and thereupon assume

the function of prosecuting authority (sections 68 and 69).

e) Judicial stage of the procedure

32. Under section 71, if the District Court finds the objection

admissible (section 70) it will, unless the 1968/1975 Act states

otherwise, examine the objection in accordance with the provisions

applicable to an objection against an order of summary punishment

(Strafbefehl): in principle, it will hold a hearing and deliver a

judgment which may impose a heavier sentence (Article 411 of the Code

of Criminal Procedure). The person concerned has the option of

attending the hearing but is not bound to do so unless the District

Court so directs (section 73 (1) and (2)); he may be represented by a

lawyer (section 73 (4)).

f) Enforcement of decisions imposing a fine

33. A decision imposing a fine is enforceable once it has become

final (sections 89 and 84). If, without having established his

inability to pay, the person concerned has not paid the fine due in

time, the court may, at the request of the administrative authorities

or, where the fine was imposed by a court decision, of its own motion,

order coercive imprisonment (Erzwingungshaft - section 96 (1)). The

resultant detention does not replace payment of the fine in the manner

of an "Ersatzfreiheitsstrafe" under the criminal law, but is intended to

compel payment. The period of detention may not exceed six weeks for

one fine and three months for several fines (section 96 (3)).

Implementation of the detention order is governed, inter alia, by the

Code of Criminal Procedure (section 97).

g) Costs

34. As far as the costs of the administrative procedure are

concerned, the competent authorities apply by analogy certain

provisions of the Code of Criminal Procedure (section 105).

35. Under section 109, the person concerned has to bear the costs

of the court proceedings if he withdraws his objection or if the

competent court rejects it.

The costs in question are made up of the expenses and fees of

the Treasury (Article 464 (a) para. 1, first sentence, of the Code of

Criminal Procedure). These fees and expenses are listed in the Court

Costs Act (Gerichtskostengesetz) which in turn refers, inter alia, to

the Witnesses and Experts (Expenses) Act (Gesetz über die

Entschädigung von Zeugen und Sachverständigen). Section 17

sub-section 2 of the last-mentioned Act provides that "for the

purposes of compensation, interpreters shall be treated as experts".

Interpretation costs (Dolmetscherkosten) are thus included in

the costs of judicial proceedings. However, as far as criminal

proceedings - and criminal proceedings alone - are concerned, the

German legislature amended the schedule (Kostenverzeichnis) to the

Court Costs Act following the Luedicke, Belkacem and Koç judgment of

28 November 1978 (Eur. Court H.R., Series A no. 29). According to

no. 1904 in this schedule, henceforth no charge is to be made for "the

sums due to interpreters and translators engaged in criminal

proceedings in order to translate, for an accused who is deaf or dumb

or not conversant with the German language, the statements or

documents which the accused needs to understand for his defence" (Act

of 18 August 1980).

36. Under the terms of section 109 of the 1968/1975 Act, the

question of payment of the costs of the proceedings, including the

interpretation costs, only arises once the withdrawal or dismissal of

the objection has become final. The person concerned may never be

required to make an advance payment in respect of the costs concerned.

2. Road traffic fines

37. The Road Traffic Act (Strassenverkehrsgesetz), the Road

Traffic Regulations and the Road Traffic Licence and Vehicle

Conformity Regulations (Strassenverkehrs-Zulassungs-Ordnung) contain

lists of "regulatory offences" punishable by a fine (section 24 of the

Road Traffic Act).

Section 24 of the Road Traffic Act provides:

"1. It shall be a 'regulatory offence' wilfully or

negligently to contravene a provision in a statutory

instrument (Rechtsverordnung) made pursuant to

section 6 (1) or in an order (Anordnung) made pursuant

to such a statutory instrument if the statutory

instrument concerned refers to the present provision ...

in respect of a given offence. Such reference shall

not be required where the provision of the statutory

instrument was made before 1 January 1969.

2. A 'regulatory offence' is punishable by a fine."

The Road Traffic Regulations, which were applied in the

present case, were contained in one of the statutory instruments

issued under section 6 (1) of the Road Traffic Act.

III. SUBMISSIONS OF THE PARTIES

A. The applicant

1. Preliminary questions

a) The applicant's status as a "victim"

(Article 25 of the Convention)

38. The applicant submits that this issue was settled by the

Commission's decision on the admissibility of the application. He

further argues that the factual and legal situation in the present

case is the same as in the Öztürk case (Eur. Court H.R., judgment of

21 February 1984, Series A no. 73) and states that he does not claim

a decision under Article 50 of the Convention.

39. The applicant also refers to a circular letter of the Federal

Ministry of Justice to the Ministers of Justice of the Länder

(Landesjustizverwaltungen), dated 8 June 1984, in which the Ministry

expressed the view that the Court's judgment on the merits of

21 February 1984 in the Öztürk case "has not modified domestic law"

("das innerstaatliche Recht nicht geändert") and that the conclusions

to be drawn from that judgment are being considered. The applicant

has filed copies of this letter and of a further letter of

24 September 1985, in which the Ministry stated that "the situation

remains unchanged" ("der Sachstand unverändert ist"). He submits

that the Government are thus causing further applications to the

Commission and increasing the work of the Convention organs.

b) The applicability of Article 6 para. 3 (e) of the Convention

40. The applicant submits that proceedings under the Regulatory

Offences Act have to be considered as criminal proceedings with all

the guarantees of Article 6 of the Convention, including the right to

the free assistance of an interpreter provided for in paragraph 3 (e)

of that provision.

2. The alleged violation of Article 6 para. 3 (e)

41. The applicant submits that the decision of the District Court,

by which he was ordered to pay the interpreter's fee, violated Article 6

para. 3 (e) of the Convention.

B. The Government

1. Preliminary questions

a) The applicant's status as a "victim"

(Article 25 of the Convention)

42. The Government observe that the interpreter's fees were not

paid by the applicant himself but by his legal insurers. The European

Court of Human Rights, in its judgment of 23 October 1984 in the

Öztürk case (Series A no. 85), dismissed Mr. Öztürk's claim, under

Article 50 of the Convention, to reimbursement of the interpretation

fees on the ground that these fees were not borne by Mr. Öztürk

himself but by his insurance company. This judgment was known to the

applicant's representative when he introduced the present application

on 27 December 1984. The Government submit that cost payment is the

only issue involved in the present application and that the applicant

cannot succeed on this issue by virtue of the above judgment of the

Court.

43. The Government further observe that an application under

Article 25 of the Convention is not an actio popularis. It does not

entitle the applicant to seek findings that go beyond the regulation

of his own case. Since the legal issue arising in the present case

was decided in the Öztürk case and since the applicant cannot expect

reimbursement of the interpretation costs in his case, there is, in the

Government's opinion, no cause for complaint and no need for legal

protection. In this connection the Government refer to the work-load

faced by the Convention organs and to the length of proceedings before

them. They argue that, for the benefit of the individual, greater

weight should be attached to the question of the need for legal

protection. Any application that manifestly has no prospect of

success should be rejected. Since the applicant cannot ultimately

succeed, there is no need for legal protection. In the light of the

Öztürk judgment (Article 50) it is also not apparent that the

applicant is aggrieved by the costs decision complained of.

b) The applicability of Article 6 para. 3 (e) of the Convention

44. The Government make no submissions under this heading.

2. The alleged violation of Article 6 para. 3 (e)

45. The Government make no submissions under this heading.

IV. OPINION OF THE COMMISSION

A. Point at issue

46. The issue to be determined in the present application is

whether the obligation imposed on the applicant to pay the interpreter's fee

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

B. The applicant's status as a "victim"

47. Throughout the proceedings the Government have argued that the

applicant cannot claim to be a "victim" in the sense of Article 25 (Art. 25) of

the Convention and that there is no need for legal protection.

48. The Commission has determined this issue in its decision on

the admissibility of the application (see pp. 18f. below).

C. Applicability of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention

49. Article 6 para. 3 (e) (Art. 6-3-e) of the Convention provides:

"3. Everyone charged with a criminal offence has the

following minimum rights:

...

e. to have the free assistance of an interpreter if he

cannot understand or speak the language used in court."

50. The Commission notes that the applicant had to answer for a

breach of the Road Traffic Regulations (see paras. 20 and 37 above).

In German law this was not a criminal offence (Straftat) but a

"regulatory offence" ("Ordnungswidrigkeit"). However, this

classification is not decisive for the purposes of the Convention.

51. The Commission here recalls that the issue of the

applicability of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention to

proceedings concerning "regulatory offences" was determined in the

Öztürk case. In that case the Court held that Mr. Öztürk, who

likewise had to answer for a breach of the Road Traffic Regulations,

was "charged with a criminal offence" within the meaning of Article 6

para. 3 (Art. 6-3-e) (Eur. Court H.R., Öztürk judgment of 21 February 1984,

Series A no. 73, p. 21 para. 54). This view has in the meanwhile

been confirmed in the Lutz case (Eur. Court H.R., Lutz judgment of

25 August 1987, Series A no. 123 - A, p. 22 para. 53).

52. The Commission therefore finds that Article 6 para. 3 (e) (Art. 6-3-e)

of the Convention was applicable in the present case.

D. Compliance with Article 6 para. 3 (e) (Art. 6-3-e)

53. The right protected by Article 6 para. 3 (e) (Art. 6-3-e) of the

Convention entails, for anyone who cannot speak or understand the language used

in court, the right to receive the free assistance of an interpreter, without

the payment of the costs thereby incurred being claimed back from him

subsequenntly (Eur. Court H.R., Luedicke, Belkacem and Koç judgment of 28

November 1978, Series A no. 29, p. 19 para. 46).

54. In the present case such costs were imposed by the District

Court's bill of costs of 8 October 1981 (para. 22 above).

55. It follows that the District Court's bill of costs violated the

applicant's right under Article 6 para. 3 (e) (Art. 6-3-e), insofar as he was

ordered to pay the fee of the interpreter.

56. The Commission concludes unanimously that there has been a

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

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

&_APPENDIX I&S

HISTORY OF PROCEEDINGS

Date Item

___________________________________________________________________

27 December 1984 Introduction of the application

15 February 1985 Registration of the application

Examination of admissibility

8 May 1985 Commission's decision to communicate

the application to the respondent

Government

20 September 1985 Government's observations

1 October 1985 Applicant's reply

12 December 1985 Commission considers state of proceedings

5 March 1986 Decision to declare the application

admissible

Examination of the merits

4 July 1986 Government's request to reject the

application under Article 29 of the

Convention

14 July 1986 Commission's deliberations

11 August 1986 Applicant's observations on

Government's request

10 December 1986 Commission's deliberations

11 December 1987 Deliberations resumed in the light of

Lutz judgment of 25 August 1987

5 July 1988 Commission's deliberations and

final votes

5 July 1988 Adoption of the Report

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AKDOGAN v. GERMANY

AKDOGAN v. GERMANY

LEXI