I.   THE FACTS

The facts as originally submitted by the applicant:

The applicant is a German barrister and notary (Rechtsanwalt und Notar)

practising in H. He is represented by the Action Committee of German

Barristers (Aktionsgemeinschaft der Deutschen Rechtsanwälte), a

registered association at H., of which he is a member of the executive

board. He is furthermore represented and supported by about 25 other

barristers who have submitted powers-of-attorney and stated that they

fully agree with the arguments expounded by the applicant. The chairman

of an association for the protection of individual rights (Verein gegen

parlamentarischen und bürokratischen Missbrauch e.V.) has likewise

submitted a power of attorney.

By decision of .. February 1970 the Regional Court (Landgericht) at

Detmold ordered that the applicant should represent, in a divorce case,

the defendant who had been granted legal aid (Armenrecht). The

applicant had not been asked by the Court whether he was willing to act

as a legal aid counsel. He appealed (Beschwerde) against the order of

.. February 1970 alleging that the instruction to represent a poor

party against his (the lawyer's) will violated Articles 3, 12 and 14

of the Basic Law (Grundgesetz). By decision of .. May 1970 the Court

of Appeal (Oberlandesgericht) at Hamm rejected this appeal.

The Court found that the obligation of barristers to represent poor

parties as provided for in Section 48, paragraph 2 of the Federal

Barristers' Act (Bundesrechtsanwaltsordnung = BRAO) was a legitimate

restriction of the right to exercise a profession (Berufsausübung) as

guaranteed by Article 12, paragraph 1, of the Basic Law, since this

obligation is in the interest of the public and does not unreasonably

burden the applicant.

Furthermore, the Court denied that this was a violation of Article 14

of the Basic Law which guarantees the rights of ownership and

inheritance (Eigentumsgarantie). The Court stated that, although it is

true that a barrister, who is ordered by a court to represent a poor

party, can only claim a part of the normal fees from the public

treasury (Sections 121, 123 of the Federal Act on Barristers' Fees =

Bundesrechtsanwaltsgebührenordnung), this does not constitute an act

of expropriation (Enteignung oder enteignungsgleicher Eingriff). The

reason given was that the obligation of barristers to represent poor

parties already existed before the applicant was admitted to the Bar

and, consequently, the legal position which he acquired by admission

was restricted from the beginning.

Finally, the Court stated that the principle that all persons shall be

equal before the law, as expressed in Article 3 of the Basic Law

(Grundsatz der Gleichbehandlung), was not violated since Article 3 only

forbids arbitrary differentiations. The Court found that, although it

is true that there are other professions which do not have an

obligation similar to the obligation of barristers to represent poor

parties without receiving adequate consideration from the public

treasury, this obligation is justified in the interest of the public.

The Court pointed out that, on the other hand, barristers profit from

the fact that in most court proceedings the parties have to be

represented by legal counsel. It therefore considered it to be

justified that barristers carry part of the burden resulting from the

need to grant legal aid to poor persons.

The applicant lodged a constitutional appeal (Verfassungsbeschwerde)

against the Appeal Court's decision. On .. July 1970 a group of three

judges of the Federal Constitutional Court (Bundesverfassungsgericht)

rejected the appeal in accordance with Section 93 a, paragraph 3, of

the Act concerning the Federal Constitutional Court (Gesetz über das

BverfG) as being clearly ill-founded. The applicant points out that,

if he had refused to act as legal aid counsel he would have risked

disciplinary proceedings leading to a professional punishment in the

form of a warning, a reprimand, a fine of up to 10,000 DM or even

exclusion from the Bar under Sections 48, 49, 113, 114 BRAO.

COMPLAINTS

The applicant alleges that the obligation of barristers to represent

poor clients without adequate consideration amounts to forced or

compulsory labour and violates Article 4 (2) and 14 of the Convention

as well as Article 1 of Protocol No. 1 in conjunction with Article 14

of the Convention.

Furthermore, he alleges that Sections 48, 114 BRAO, which provide for

a sanction affecting professionally those barristers who refuse to act

as legal aid counsels, violate Article 11 of the Convention.

I.   Arguments of the applicant concerning the alleged violation of

Article 4, paragraph 2, and Article 14 of the Convention.

In this respect the applicant refers to the Commission's decision

concerning application No. 1468/63 (Iversen v. Norway, Yearbook, Vol.

VII, p. 278) in which four members of the Commission expressed the

opinion that, following the provisions and application of ILO

Conventions and Resolutions on Forced Labour, the elements of forced

or compulsory labour are first, that the work or service is performed

by the worker against his will and, secondly, that the requirements

that the work or service be performed is unjust or oppressive or the

work or service involves avoidable hardship.

The applicant is of the opinion that these elements are to be found in

his case since barristers are forced to represent poor clients under

the threat of severe punishment affecting their profession, while in

such cases they do not receive an adequate consideration for their

services. For example, in criminal proceedings the fees paid by the

public treasury to the official defence counsel (Pflichtverteidiger)

amount to only a quarter of the fees which he could claim from the

client himself, if the latter were solvent. The State has enough money

to cover the full fees of barristers since it is even supporting the

political parties by granting them generous financial subsidies.

Therefore the State deliberately abuses its power by forcing

barristers, through threat of professional sanctions, to give their

services in legal aid cases without receiving adequate consideration.

It thus partly divests itself, to the detriment of the legal

profession, of a burden which ought to be carried by the public and not

by a single professional group. In fact no other professional group in

Germany is obliged to give their services to the poor without adequate

consideration. Judges or other officials of the judiciary are likewise

not supposed to do extra work in legal aid cases without adequate

compensation. For the last mentioned reasons the obligation of

barristers to represent poor clients cannot be considered as a normal

civic obligation within the meaning of Article 4, paragraph (3) (d),

of the Convention.

The applicant points out that the present situation also causes

prejudice to those who need legal aid, because a barrister appointed

to defend the case of a poor party will naturally not put much effort

into a difficult and perhaps long lawsuit if he cannot expect to be

paid adequately for his services.

Summing up, it can be concluded that the obligation of barristers to

represent poor clients is, at least in most cases and especially in the

present one, imposed on them against their will; it is furthermore

unjust and oppressive as a barrister has to face a punishment if he

refused to carry out his task. The obligation consequently amounts to

forced or compulsory labour. This violation of Article 4, paragraph

(2), of the Convention could easily be remedied by the respondent

Government if it provided the necessary financial means.

II.  Violation of Article 1 of Protocol No. 1 in conjunction with

Article 14 of the Convention.

A barrister's office is a private enterprise and as such constitutes

a property right within the meaning of Article 1 of Protocol No. 1

(Recht am eingerichteten und ausgeübten Betrieb; the applicant refers

in this respect to Schorn, Die Menschenrechtskonvention, 1965, p. 426).

This property right is diminished in each case where a barrister has

to represent a poor party without receiving adequate consideration. The

services of a barrister given in civil aid cases enrich the respondent

Government without just cause, as it is their proper obligation to

provide legal aid to the poor and not the obligation of a single

professional group. Of course it is in the public interest that

barristers also represent the poor parties, but this public interest

does not justify lawyers being inadequately paid for their services,

taking into consideration that the respondent Government has sufficient

financial means and furthermore that, according to the Emergency

Assistance Law (Bundesleistungsgesetz, BGBI I, 1961, 1769, Sections 20

et seq.) members of all other professions have a claim for adequate

compensation where they have to perform services.

III. Violation of Article 11 of the Convention

The Action Committee of German Barristers was founded as a kind of

trade union for the protection of the interests of the legal

profession. One of its aims is the abolition of the obligation of

barristers to represent poor parties without adequate payment. The

executive board has in vain requested the respondent Government to

change the present situation. The most effective way to push through

this well-founded request would now be a strike. However no barrister

would dare to go on strike as he would consequently face a professional

sanction under Sections 48, 49, 114 BRAO. It follows that these

provisions restrict the Action Committee in the exercise of its rights

and therefore violate Article 11 (1) of the Convention since the

restriction is not justified for any of the reasons listed in paragraph

(2) of this Article.

The applicant has, inter alia, submitted two articles which he

published in German legal periodicals and in which he also expounded

his arguments concerning the legality of the obligation of barristers

to represent poor clients without adequate consideration.

Proceedings before the Commission

On 1 April 1971 the Commission first examined this application and

decided to invite the respondent Government to submit its observations

on the admissibility of the application before 24 May 1971. At the

request of the Government this time-limit was extended until 20 July

1971.The Government justified their request for an extension of the

time-limit by stating that their experts on questions of costs and fees

had been occupied in preparing a bill amending the Acts on court costs

and barristers' fees (Entwurf eines Gesetzes zur Änderung des

Gerichtskostengesetzes und der Bundesgebührenordnung für

Rechtsanwälte). A copy of this Bill was submitted.

The applicant was informed of this. In a letter of 22 July 1971 he

replied that a raise in fees alone would not solve the problem. As long

as Sections 48 and 49 of the Federal Barristers' Act (BRAO)  were not

repealed, the duty of barristers to represent poor clients would always

have to be considered as "forced labour" because these Sections provide

that a barrister can be subjected to disciplinary measures if he

refuses to represent a person to whom legal aid has been granted. He

pointed out that the largest Bar Association (Rechtsanwaltskammer) of

the Federal Republic of Germany, namely that of Hamm, had in a session

on 20 January 1971 declared unconstitutional the fact that barristers

are by the threat of disciplinary punishment compelled, without

receiving adequate remuneration, to represent poor clients.

The respondent Government's observations were received on 17 July 1971.

The applicant was then invited to submit his reply before 6 September

1971.Following a request of the applicant, the time-limit for the submission

of his reply to the Government's observations was extended until 20

September 1971 when his reply was received.

Summary of the observations of the parties on admissibility

I.   The respondent Government

(1)  Barristers are organs of the administration of justice and they

enjoy extensive privileges, e.g. in civil proceedings the parties have

to be obligatorily represented by a barrister before all courts other

than the District Court (Section 78 (1) of the Code on Civil

Procedure). The monopoly position of barristers is further protected

by the Law for the Prevention of Abuses in the Field of Legal Advice

(Rechtsberatungsmissbrauchsgesetz).

The duty to represent poor clients balances these advantages.

(2)  The applicant complains of his appointment to act for an assisted

party in divorce proceedings. He can only allege that this appointment

violated certain provisions of the Convention but he cannot allege in

general that the duty of barristers to represent poor persons in all

kinds of proceedings is incompatible with the Convention.

As to divorce proceedings, it is pointed out that the Government is

preparing a Bill concerning the proceedings in matrimonial and infancy

cases. Within the framework of this Bill the Government will propose

a considerable increase in the fees for legal aid counsels.

Although this application does not concern criminal proceedings, it is

further pointed out that, on 28 May 1971, the Government has submitted

a Bill to the Federal Council (Bundesrat) suggesting a considerable

increase of fees for official defence counsels. The Federal Council has

given its observations and the Bill will soon be submitted to the

Federal Parliament (Bundestag).

(3)  The duty to represent poor clients is a necessary and inherent

obligation connected with legal practice. This duty does not constitute

forced labour within the meaning of Article 12 (2) of the Basic Law,

but is a lawful regulation concerning the exercise of the profession

(Article 12 (1) phrase 2 of the Basic Law).

The duty in question does also not conflict with the international

concept of the notion of "forced or compulsory labour". The basic

provisions on the abolition of forced labour are contained in the ILO

Conventions No. 29 (28.6.70) and No. 105 (25.6.57). The background of

Convention No. 29 was the abolition of slavery and colonial oppression

and the exploitation of manpower under degrading conditions connected

therewith. Convention No. 105 was essentially intended to prohibit

forced labour as a means of political teaching and economic

development. Furthermore, it covers forced labour as a measure of work

discipline, as a penalty for strikes and as a means of racial, social,

national or religious discrimination. In view of this categorical

enumeration, a special definition of the term "forced labour" was

considered unnecessary (ILO Report of the Committee of Experts on the

Application of the Conventions and Recommendations, Geneva 1962, Report

III, Part IV, p. 203 - this report mentions as an example that the duty

to sit on a jury or the duty of students to work before they are

admitted to their profession cannot be regarded as forced labour).

Considering that the elements of forced labour are, first, that the

work is performed by the worker against his will, and, secondly, that

the requirement that the work be performed is unjust or oppressive or

the work itself involves avoidable hardship (see Iversen case,

application No. 1468/62, Yearbook, Vol. VI, p. 278 et seq.) it cannot

be maintained,

- that the requirement that a lawyer has to represent a poor party is

unjust. The public is charged with a considerable part of the costs

which are the result of legal aid. The State renounces the court fees

and pays the fees of the legal aid counsel, unless these fees can be

recovered from the opponent party.

Not only lawyers but, for example, lay judges and jurymen serve for a

remuneration that is not determined by economic considerations.

- that the requirement is oppressive. Usually the courts only appoint

those lawyers who have declared themselves interested in acting as

legal aid counsels.

The economic burden resulting from the fact that the fees paid to legal

aid counsels are below the standard fees is not inadequate or

unreasonable in relation to the total income of those counsels.

According to the applicant's own statements the loss of fees only

amounts to about 6 or 7 per cent of their total earnings. It must also

be taken into consideration that legal aid is mostly granted in

criminal proceedings and for these a considerable increase in fees is

being proposed.

(4)  In reply to the applicant's arguments that the "underpaid" legal

aid counsel might not take much interest in the case of his client, it

suffices to refer to Section 46 of the Rules for the practice of the

legal profession, which provide that a barrister has to exert the same

diligence in legal aid cases as in other cases.

(5)  Article 1 of Protocol No. 1 is not violated. It is questionable

whether the work of a barrister can be considered as a property right

within the meaning of that Article. In any event, the duty in question

only constitutes a limitation of the economic freedom of development

and is, as such, justified in the general interest. It is not

unreasonable because the time and working capacity of the barrister

concerned are not taken up excessively and his total earnings are only

slightly reduced.

(6)  With regard to Article 11, the applicant has not shown that he

is himself a victim.

II.  The applicant

(1)  A barrister is in no sense an organ of the administration of

justice and neither is he specially protected by the State nor does he

enjoy extensive privileges.

(a)  Compulsory representation by barristers applies only to civil

matters. It is in fact a burden on the Bar because litigation is no

longer a paying matter for lawyers. Furthermore, a barrister is

restricted in the exercise of his professional freedom by the fact that

he is only admitted to a single regional court or court of appeal. This

system was justified at a time when the number of barristers admitted

to the Bar was regulated (numerus clausus).

Today everyone with the necessary qualifications is at his request

admitted to the Bar.

These out-of-date rules on compulsory representation and restriction

to one court are not being maintained to protect lawyers but for

reasons of public interest, namely the convenience of judges, who

prefer to deal with cases which are coherently prepared by barristers

instead of by the parties themselves.

(b)  It is furthermore not true that, in the field of legal advice,

barristers enjoy a monopoly position. There are legal advisers

(Rechtsbeistände), tax representatives and tax advisers

(Steuerbevollmächtigte, Steuerberater), business consultants and

chartered accountants (Wirtschaftsberater, Wirtschaftsprüfer), who can

to a certain extent give legal advice. There are also employers'

associations, trade unions, banks etc. which can, also to a certain

extent, give legal advice to their members or protégés. in the field

of social insurance law, the administration keeps the fees so low that

they do not even cover the official expenses of a barrister.

In general the fees of barristers, which are fixed by the

administration, are far too low.

(c)  As a result of all the above considerations, the majority of

barristers, in spite of their long university and professional

training, do not earn more than an ordinary skilled worker.

Adding together a district court judge's (Oberamtsrichter) salary,

pension and additional perquisites, it will be found that he receives

three times as much as the average barrister.

Nevertheless, the Government dares to argue that "the principle of

equality demands that barristers should be required to perform

compulsory legal service".

(2)  An increase in fees does not change the situation. The system

must be completely voluntary and there should not be any sanctions

against barristers who refuse to represent poor parties.

(3)  The applicant was not free in choosing his profession. After he

graduated from high school he had to join the Labour Service

(Reichsarbeitsdienst) and later the army. As a consequence he could not

start his professional career before he was 36 years old. He intended

to enter the foreign service but was refused because of his age. In

public service there were no vacancies. He therefore had no choice but

to become a barrister.

(4)  Both literally and in the current usage, the term "forced labour"

is any work extorted by the threat of crippling punishment. These

elements are present.

(5)  The comparison with jurymen and other lay judges is inaccurate,

because they are not requested to render professional services but to

assume an honorary office. In any event they are also much better paid

than legal aid counsels.

(6)  According to recent statistics collected by the Federal

Statistics Office, the compulsory services required of barristers

amount to 48% of all criminal cases and 11.2-13.6% of the civil cases

in which lawyers are involved. The applicant is not only a barrister

but at the same time a notary, and notaries are also obliged to give

their services free of costs if the client is indigent.

(7)  The "professional statutes" referred to by the Government were

not established by the "opinio communis" of all barristers but by the

few leaders of the profession. These statutes were then forced on all

other lawyers.

(8)  Compulsion to undertake underpaid work cannot be justified by the

moral standards of the profession.

(9)  There can be no question of the utilisation of barristers'

services being a reasonable social obligation imposed on property. Such

an obligation would imply the existence of property subject to communal

obligations, whereas the barristers' work consists of strictly personal

services.

(10) Article 11 is violated. The applicant has, in his capacity as

chairman of the Action Committee of German Lawyers, requested the

Government to repeal Sections 48 and 49 of the Federal Barristers' Act.

The Government deliberately refrained from doing so, so as to be able

to continue using these provisions as a means of exercising pressure

on the Bar. The refusal to repeal Sections 48 and 49 therefore violates

Article 11 of the Convention.

It is pointed out in this context that the Minister of Justice of

Hessen threatened to use disciplinary measures when the Law Society

(Anwaltsverein) of S. issued a strike notice.

(11) The applicant realises that the service of barristers in legal

aid cases is necessary in the public interest. But the common weal

should never be defended on the ruins of the legal system and morality

at the expense of a small professional group.

Further proceedings and developments

The Commission examined the application on 10 February 1972 on the

basis of the written observations of the parties on admissibility.

In view of the fact that the respondent Government had submitted to

Parliament a Bill providing for higher fees for official defence

counsel, and was preparing a further Bill purporting, inter alia, an

increase in fees for legal aid counsel in matrimonial and infancy

cases, the Commission decided to adjourn the examination of the case.

By letter of 21 July 1972 the applicant informed the Commission that

the Federal Council (Bundesrat) was opposed to the proposed increase

in fees for official defence counsels and had decided to appeal to the

Conciliatory Committee (Vermittlungsausschuss) in order to have the

Government's Bill amended accordingly. The applicant was of the opinion

that this procedure and the then imminent dissolution of Parliament

would lead to a considerable delay in the adoption of the Bill. He

stated that, even if an increase in fees were finally agreed, the

rising inflation would render it insignificant. He alleged that the

Federal Council's attitude in respect of the Bill in question was

"unfair" and incompatible with "good morals" (unlater und gegen die

guten Sitten verstoßend) and requested the Commission to give a

decision as soon as possible.

A copy of the applicant's letter was sent to the respondent Government

for information. The Government replied in a letter of 7 August 1972

that there were no reasons to fear that the adoption of the Bill would

be unreasonably delayed. Furthermore, the Government stated that they

considered the applicant's above-quoted remarks to be insulting and

asked the Commission in this respect to proceed in accordance with its

established practice and jurisprudence concerning insulting remarks

made in applications.

A copy of this letter was sent to the applicant for his information

only.

On 13 September 1972 the applicant sent a further letter stating that

in his opinion the obligation of barristers to represent poor clients

was clearly "forced or compulsory labour" within the meaning of Article

2 (1) of the ILO Convention 29, which states:

"For the purpose of this Convention the term 'forced or compulsory

labour' shall mean all work or service which is exacted from any person

under the menace of any penalty and for which the said person has not

offered himself voluntarily".

On 5 October 1972 the Commission decided to adjourn the examination of

the case until December 1972.

By letter of 9 November 1972 the respondent Government informed the

Commission that the Bill in question concerning increase of fees for

official defence counsel had been adopted and that the new Law had come

into force on 1 November 1972. Section 2 of this Law contains

amendments of the Federal Act on Barristers' Fees. Section 2 No. 3

provides for an increase of the fee for defence counsel appointed by

the court in criminal matters. It provides:

"Section 97, paragraph 1 (of the Federal Act on Barristers' Fees) reads

as follows:

(1)  Where Counsel has been appointed by the Court, he shall be paid

by the State Treasury four times the minimum amounts laid down in

Sections 83-86, 90-92, 94 and 95, but not more than half the maximum

amount. If he acted as Defence Counsel also prior to the opening of the

main proceedings, he shall be paid, irrespective of the date of his

appointment, an additional fee in the sum of four times the minimum

amounts laid down in Section 84."

The Government point out that under the old version, counsel was paid

only one and a half times the amount of the respective minimum fees.

The fees for official counsel appointed by the court in proceedings

concerning deprivation of liberty were also raised. The relevant

Section 112, paragraph 4 of the Federal Act on Barristers' Fees now

reads as follows:

"(4) Where Counsel has been appointed by the Court he shall be paid

by the State Treasury four times the amount of the minimum fees laid

down in paragraphs 1, 2 and 3; ..."

The Government concluded that, in consequence of these amendments, the

financial situation of German barristers had improved.

In his reply of 30 November 1972 the applicant pointed out that his

complaint concerned an appointment in civil proceedings and that fees

for legal aid counsels in civil proceedings had not been raised.

He insisted on the repeal of Sections 48, 49 of the Federal Barristers'

Act which obliges barristers to accept appointments as legal aid

counsels. He stated that the Ministers of Justice in two Lander have

threatened to institute disciplinary proceedings based on these

Articles if the members of the Bar Associations concerned went on

strike as they had threatened. He was of the opinion that the

obligation of barristers to represent poor clients amounts to

compulsory labour within the meaning of Article 2 of ILO

Convention No. 29, and Article 4 (2) of the Convention irrespective of

the fees paid by the State. He pointed out that, as long as barristers

are compelled to accept appointments by the courts to represent poor

clients, they are prevented from fighting for higher fees by way of a

strike.

On 20 December 1972 and in subsequent sessions the Commission again

decided to adjourn the examination of the application pending the

outcome of the legislation prepared by the respondent Government and

purporting an increase in fees for legal aid counsel in matrimonial and

infancy cases.

By letter of 15 August 1973 the respondent Government submitted as

follows:

"By Article 2 No. 5 of the Act Amending the Federal Barristers' Act,

the Federal Act for Barristers' Fees and Other Provisions of 24 October

1972, paragraphs 2 and 3 of Section 123 of the Federal Act on

Barristers' Fees, which dealt with the fees for Counsel appointed under

the legal aid scheme, have been repealed...

As a result of the repeal of paragraph 2 the fees payable to a

barrister appointed under the legal aid scheme in the civil cases

mentioned therein, e.g. in divorce cases, have been improved

considerably ... Counsel appointed under the legal aid scheme are now

entitled to a fee amounting to DM 113 instead of the full fee where the

value of the property in the divorce case is DM 3000 while formerly the

fixed amount of DM 75 was, independently of the value of the property

in dispute, paid instead of the full fee.

According to Section 14 of the Court Fees Act of 26 July 1957, the

value of the property in dispute amounts to DM 3000 in divorce cases.

However, in the individual case it may be assessed at a higher amount,

the maximum being DM one million.

It is intended to provide in Article 10 No. 1 (e) of the First Act

Reforming Matrimonial and Family Law for this normal value of the

property in dispute amounting to DM 3000, as laid down in Section 14

of the Court Fees Act, to be replaced by a value amounting to DM 4000.

This Bill has been tabled in the Bundestag. According to it the fee

provided in Section 123, paragraph 1, of the Federal Act on Barristers'

Fees for Counsel appointed under the legal aid scheme would be further

increased to DM 123."

THE LAW

I.   The applicant has first complained that his appointment by the

Regional Court at Detmold to represent the defendant, who had been

granted legal aid in a divorce case, violated Article 4 (2) (Art. 4-2)

of the Convention as he had to accept this appointment against his will

and otherwise would have been subjected to disciplinary punishment.

Article 4, paragraph (2) (Art. 4-2), of the Convention provides that

no-one shall be required to perform forced or compulsory labour.

The Commission is of the opinion that the concept of compulsory or

forced labour cannot be understood solely in terms of the literal

meaning of the words. It shares the opinion, which was expressed by

four of its members in the Iversen case, that it had in fact "come to

provisions and applications of ILO Conventions and provisions and

applications of ILO Conventions and Resolutions on forced labour, as

having certain elements and that it is reasonable, in the

interpretation of Article 4 (2) (Art. 4-2) of the Convention, to have

due regard to those elements; these elements of forced or compulsory

labour are first, that the work or service is performed by the worker

against his will and, secondly, that the requirement that the work or

service is performed is unjust or oppressive or the work or service

itself involves unavoidable hardship".

The Commission has first examined whether the applicant in the present

case was required under the legal aid system to work against his will.

It notes that the applicant has freely chosen his profession as a

barrister knowing that barristers have, according to German law, the

obligation to represent poor clients if a court appoints them as legal

aid counsel. The Commission is therefore of the opinion that the

applicant cannot therefore now claim that he acted against his will as

legal aid counsel in the divorce case.

Furthermore, the work required by the applicant was not unjust since

the right to receive legal aid is provided for under the Convention,

and is thus recognised as an obligation of the State. There is also no

hardship involved since the work required was a barristers' normal

professional work. The alleged financial loss, which in any event does

not, in view of the recent changes of the respective German law, seem

to be important, can also not be regarded as causing the applicant any

real hardship. In this connection the Commission points out that,

according to the undisputed statement of the respondent Government, the

German courts respect, as a rule, the suggestions of the Bar and only

appoint those barristers who have declared an interest in taking on the

representation of persons who have been granted legal aid by the court.

It follows that the application is in this respect manifestly

ill-founded within the meaning of Article 27, paragraph (2)

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

II.  The applicant has further alleged that his obligations as a

barrister to represent poor persons, who were granted legal aid,

violates Article 1 of Protocol No. 1 (P1-1) because he is not receiving

the full fee in such cases.

Article 1, first paragraph, of this Protocol (P1-1-1) provides that

every natural or legal person is entitled to the peaceful enjoyment of

his possessions. No one shall be deprived of his possessions except in

the public interest and subject to the conditions provided for by law

and by the general principles of international law.

The fact that counsel receives a fee from the State less than the

obtainable for the same work in private practice, does not mean that

he is deprived of any property right; for there was no property right

accruing to him until the grant of legal aid.

Further, as regards any claim against private party in civil

proceedings it has to be noted that a legal aid counsel can recover his

full fees from the adverse party which is also the losing party (see

Section 124 of the Code of Criminal Procedure = ZPO). This will often

be the case as legal aid is, in civil proceedings, only granted if the

case offers any prospects of success (see 114 (1) of the Code on Civil

Procedure). It does not in fact follow from the applicant's submissions

that in the divorce proceedings in question he could not recover his

fees from private party.

An examination of this complaint does not therefore disclose any

appearance of a violation of Article 1 of Protocol No. 1 (P1-1).

It follows that the application is in this respect also manifestly

ill-founded within the meaning of Article 27, paragraph (2)

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

III. The applicant has further complained that the work imposed upon

him, as well as the alleged financial losses he had to bear, were of

a discriminatory nature since other professions allegedly receive an

adequate remuneration if they have to render services required by the

State in certain circumstances.

This complaint falls within the scope of Article 14 (Art. 14) in

conjunction with Article 4 (2) (Art. 4-2) of the Convention and Article

1 of Protocol No. 1 (P1-1). According to the established case-law of

the Commission and the Court of Human Rights on the meaning and scope

of Article 14 (Art. 14) and its role as an integral part of each

Article laying down rights and freedoms, a measure which, as in the

present case, in itself is in conformity with the requirements of the

Articles ensuring the rights or freedoms in question may however

infringe these Articles when read in conjunction with Article 14

(Art. 14) for the reason that it is of a discriminatory nature (see

European Court of Human Rights, case "relating to certain aspects of

the laws on the use of languages in education in Belgium" (merits),

judgment of 23 July  1968, p. 33 and the decisions of the Commission

on the admissibility of applications No. 4372/70, Collection of

Decisions, Vol. 37, p. 101 and No. 2727/66, Collection of Decisions,

Vol. 35, p. 12).

The Commission first notes that members of other professions may under

certain circumstances also be obliged to perform their duties (see e.g.

Section 2 (1) paragraph 9 Bundesleistungsgesetz). The only difference

between the situation of barristers and other professions is, according

to the applicant, that other professions are better paid in cases where

they are obliged to carry out their professional duties. The Commission

doubts whether this allegation is correct, at least generally. Taking

into account the recent increases of legal aid fees and considering

that, for example, a divorce case, where both parties consent to the

divorce, may give very little work to the barristers representing the

parties, it can be assumed that in many cases the legal aid fees in

fact constitute an adequate remuneration for the services of legal aid

counsels. But, even on the assumption that other professions are

financially treated more favourably than barristers, the Commission is

of the opinion that such differential treatment is fully justified

taking into account the factual differences between the situation of

barristers and of other professions and taking further into account

that, at least in civil proceedings, the legal aid counsel eventually

has the possibility to claim his full fees from the other party or from

his own client where the financial situation of the latter improves

(see Sections 115 (1) No. 1, 125 of the Code on Civil Procedure;

Section 100 of the Federal Act on Barristers' Fees).

An examination of this complaint does not therefore disclose any

appearance of a violation of Article 14 (Art. 14) read in conjunction

with others, Article 4, paragraph (2) (Art. 4-2), of the Convention or

Article 1 first paragraph of Protocol No. 1 (P1-1-1).

It follows that this part of the application is again manifestly

ill-founded within the meaning of Article 27, paragraph (2)

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

IV.  The applicant has finally alleged a violation of Article 11

(Art. 11) of the Convention. He stated in this respect that the action

Committee of German Barristers could not make use of the most effective

weapon, namely the strike, to push through its members' well-founded

request for adequate remuneration in legal aid cases, because no

barrister would dare to go on strike as he would consequently face a

disciplinary sanction.

It is true that Article 11 (Art. 11) of the Convention guarantees to

everyone the right to freedom of peaceful assembly and to freedom of

association with others, including the right to form and to join trade

unions for the protection of his interests.

However, the Commission notes that the applicant was not prevented from

joining, or even forming, the Action Committee of German Barristers.

Furthermore, it has to be noted that, as the applicant has in his

letter of 30 November 1971 himself admitted, in various parts of the

Federal Republic barristers, who were apparently not members of the

Action Committee went on strike, refusing to take on legal aid

appointments. The authorities apparently took no action against these

lawyers. In these circumstances the applicant can himself not be

considered a victim of the alleged violation of Article 11 (Art. 11)

of the Convention.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27, paragraph (2)

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

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE.