Lexploria

AS TO THE ADMISSIBILITY OF

Application N° 11394/85

by Aziz AKDOGAN

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

5 March 1986, the following members being present:

MM C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to:

- Art 25 of the Convention for the Protection of Human Rights and

Fundamental Freedoms;

- the application introduced on 27 December 1984 by Aziz AKDOGAN

against the Federal Republic of Germany and registered on

15 February 1985 under file N° 11394/85;

- the judgments given by the European Court of Human Rights in the

Öztürk case on 21 February 1984 (merits - Series A N° 73) and

23 October 1984 (Art 50 - Series A N° 85);

- the Rapporteur's first report, under Rule 40 of the Commission's

Rules of Procedure, of 29 April 1985;

- the Commission's decision of 8 May 1985 to communicate the

application to the respondent Government under Rule 42 (2)(b);

- the Government's observations of 20 September 1985;

- the applicant's reply of 1 October 1985;

- the Rapporteur's second report of 13 November 1985;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submittecd by the parties may be

summarised as follows:

The applicant is a Turkish citizen, born in 1940 and residing

in Heilbronn (Federal Republic of Germany). In the proceedings before

the Commission he is represented by Mr N. Wingerter, a lawyer

practising in Heilbronn.

On 7 May 1981 the Heilbronn District Administration

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

having caused a traffic accident while driving his motor vehicle.

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 order of 7 May 1981 accordingly became

final (rechtskräftig).

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 interpreter's fees.

The applicant entered an appeal (Erinnerung) against the bill

of costs with regard to the interpreter's fees.

The District Court dismissed the appeal on 27 September 1982.

It considered that Art 6 (3)(e) of the Convention was not applicable

to proceedings relating to regulatory offences (Ordnungswidrigkeiten).

These proceedings did not form part of the criminal law within the

meaning of Art 6 (3)(e) of the Convention.

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

applicant's legal insurers (ARAG Düsseldorf).

The applicant lodged a constitutional appeal

(Verfassungsbeschwerde) 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

appeal 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 appeal. The Federal Constitutional Court does not apply

the guarantees of a fair hearing (Grundgesetz) in Art 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 Art 2 (1) in conjunction with

Art 20 (3) of the Basic Law to degrade an accused, who is not

sufficiently conversant with the German language, to an

incomprehensible subject of the proceedings. 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 Art 465 (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 Art

3 (3) of the Basic Law does not include the right to financial

compensation as a result of linguistic difficulties.

COMPLAINTS

The applicant complains that he was wrongly ordered to pay the

interpretation costs. He refers to the judgment of the European Court

of Human Rights of 21 February 1984 in the Öztürk case (Series A N° 73)

and stresses that proceedings under the Regulatory Offences Act have

to be considered as criminal proceedings with all the guarantees of Art

6 of the Convention, including the right to the free assistance of an

interpreter provided for in para 3, sub-para e of that provision.

SUBMISSIONS OF THE PARTIES

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 N° 85), dismissed Mr Öztürk's claim, under Art 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 when he

introduced the present application on 27 December 1984 as he was

represented by Rechtsanwalt Wingerter who also represented Mr Öztürk.

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 Court's above judgment.

They request the Commission to declare the application

inadmissible on the ground that the applicant is not a victim within

the meaning of Art 25 of the Convention or, alternatively, on the

ground of manifest ill-foundedness.

The applicant submits that the factual and legal situation in

the present case is the same as in the Öztürk case. He denies having

had knowledge of the Court's judgment of 23 October 1984 in the Öztürk

case, as alleged by the Government, and argues that not only costs but

human rights are at issue.

The applicant further 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

innerstaaatliche Recht nicht geändert") and that the conclusions to be

drawn from that judgment are being considered. The applicant has

submitted 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").

THE LAW

The Commission has examined:

1. whether the applicant may claim to be a "victim" in the sense

of Art 25 (Art. 25) of the Convention and, if so,

2. whether the application is manifestly ill-founded within the

meaning of Art 27 (2) (Art. 27-2) of the Convention.

Under Art 25 (1) (Art. 25-1), first sentence, the Commission

may receive applications from individuals who claim to be victims of

violations of the Convention. The Commission finds that the applicant

is a "victim" in the sense that he was both affected and aggrieved by

the decision of the District Court ordering him to pay, as part of the

costs of the proceedings against him, the fees of the interpreter. This

finding is not altered by the fact that payment was eventually made by

the applicant's insurance. As rightly pointed out by counsel, the

situation was analogous in the Öztürk case.

The Commission has further examined whether the applicant is

nevertheless precluded from bringing the present application under Art

25 (Art. 25) on the ground that he has no valid legal interest in these

proceedings. Such a situation could, for instance, arise if an

application lacks any practical purpose - cf N°s 7289/75 and 7349/76,

Dec 14.7.77, DR 9, pp 57, 73.

The Commission notes that, in the present case, the legal issue

- the applicability of Art 6 (3)(e) (Art. 6-3-e) of the Convention in

proceedings concerning regulatory offences - is the same as in the

Öztürk case. It also observes that the Federal Ministry of Justice,

in its letter of 8 June 1984 to the Land Administrations of Justice,

expressed the view that the Court's judgment in the Öztürk case "has

not modified domestic law" and further stated that the conclusions to

be drawn from that judgment are being considered. Moreover, in a

letter of 24 September 1985, the Ministry declared that "the situation

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

In these circumstances the Commission cannot find that, at the

present stage, the applicant has no legal interest to have his

complaint under Art 25 (Art. 25) of the Convention determined.

Having regard to the Court's interpretation of Art 6 (3)(e)

(Art. 6-3-e) in the Öztürk case the Commission also cannot find that

the present applicant's complaint under this provision is manifestly

ill-founded within the meaning of Art 27 (2) (Art. 27-2) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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AKDOGAN v. GERMANY

AKDOGAN v. GERMANY

LEXI