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AS TO THE ADMISSIBILITY OF

Application No. 19512/92

by Eva PFISTER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 7 September 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 July 1990 by

Eva PFISTER against Germany and registered on 13 February 1992 under

file No. 19512/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1948 and living in

Waldalgesheim. She is represented by Mr. W. Foerster, a lawyer

practising in Wiesbaden.

It follows from the applicant's statements and the documents

submitted that in 1988, criminal proceedings were pending against the

applicant and on 19 July 1988, Mr. L. was appointed as the applicant's

official defence counsel. On 14 October 1988 the applicant choose Mr.

Foerster as her defence counsel. On 21 November 1988 the trial against

the applicant and others started and her chosen defence counsel made

the request to revoke the appointment of the official defence counsel.

It is stated in the request that the chosen counsel had made sure to

be able to attend all hearings and that he would not abandon the

applicant on account of possible inability to pay his fees.

The request was rejected by the trial court's president and an

appeal against this decision was dismissed by the Koblenz Court of

Appeal (Oberlandesgericht) on 9 December 1988 as being inadmissible.

On 12 January 1989, the applicant was convicted by the Regional

Court (Landgericht) in Mainz of furthering prostitution and procuring.

She was sentenced to two years imprisonment on probation. The judgment

became final.

On 25 August 1989, the applicant was presented the bill

concerning the costs of the proceedings which according to the judgment

of 12 January 1989 she had to pay for.

The bill included the costs of the official defence counsel in

the amount of DM 15631.11.

The applicant lodged an appeal (Erinnerung) complaining of the

costs of the official defence. On 27 October 1989 the appeal was

partly granted in that the costs relating to the official defence

counsel were reduced by DM 5443.50.

The applicant however maintained her appeal considering that the

official defence counsel costs should not be imposed on her because she

was defended by a chosen counsel.

On 16 January 1990, the Regional Court rejected this appeal. It

stated that according to Section 143 of the Code on Criminal Procedure

(StPO), the appointment of an official defence counsel could in

principle be withdrawn when the defendant chooses his own counsel. In

the present case however it had been necessary (unabweisbares

Bedürfnis) to continue the trial both with the official defence counsel

and the defendant's chosen counsel. It is pointed out that the

applicant had herself initially requested that Mr. L be appointed as

her official defence counsel stating that she was without means.

Consequently there was danger that in view of the uncertain length of

the trial, chosen defence counsel might eventually discontinue his

activities because the applicant was unable to pay his fees. Therefore

it was necessary in the interest of assuring the proper course of the

trial to maintain the official defence counsel.

An appeal (Beschwerde) against this decision was rejected by the

Regional Court on 28 February 1990 by the Koblenz Court of Appeal. This

court referred to the Federal Court's jurisprudence accordin

it could be justified in the interest of assuring the trial to maintain

an official defence counsel even if the defendant was defended by a

chosen counsel. The fact that the applicant's chosen counsel had given

an assurance that he would attend all hearings of the trial was, in the

Court's opinion, of no relevance as it had nevertheless been possible

in view of the particular complexity of the case that for some reason

or other the chosen defence counsel might not have been able to attend

all hearings.

On the other hand, the question whether or not the applicant was

in a position to reimburse the costs in question was a matter which

became relevant only in the course of the execution proceedings.

COMPLAINTS

The applicant considers that the maintenance of the official

defence counsel was unnecessary and violated Article 6 para. 3 of the

Convention.

THE LAW

The present application raises the question as to whether it is

compatible with Article 6 (Art. 6) for the State to seek to recover

from an accused, after he/she has been convicted, the fees and

disbursements of one or more defense counsel who was appointed by the

competent court on the ground that the interests of justice so required

and who, in accordance with its order, provided him/her during his/her

trial with assistance for which they did not charge him/her at the

time.

This question was in the meantime decided by the European Court

of Human Rights in the affirmative and the Commission can quote from

the Court's judgment of 25 September 1992 in the case of Croissant

(Series A. No. 237-B, paras. 26 et seq.):

"an analysis of this complaint reveals that attention must both

be given to the initial appointment itself and the subsequent

reimbursement order. The former raises - irrespective of the

accused's means - issues under Article 6 (Art. 6), especially as

regards the meaning of the phrase "to defend himself in person

or through legal assistance of his own choosing".....

It is true that Article 6 para. 3 (c) (Art. 6-3-c) entitles

"everyone charged with a criminal offense" to be defended by

counsel of his own choosing (cf. Pakelli v. Germany of 25 April

1983, Series A no. 64, p. 15, para. 31). Nevertheless, and

notwithstanding the importance of a relationship of confidence

between lawyer and client, this right cannot be considered to be

absolute. It is necessarily subject to certain limitations where

free legal aid is concerned and also, as in the present case, it

is for the courts to decide whether the interests of justice

require that the accused be defended by counsel appointed by

them. When appointing defense counsel, the national courts must

certainly have regard to the defendant's wishes; indeed, German

Law contemplates such a course (Article 142 of the Code of

Criminal Procedure). However, they can override those wishes

when there are relevant and sufficient grounds for holding that

this is necessary in the interests of justice."

In the present case the applicant's request to revoke the

appointment of the official defense counsel was rejected on the ground

that this appointment was necessary in the interests of justice in

order to make sure that the applicant was effectively defended by

defense counsel throughout all trial hearings. In view of the

uncertain length of the trial and in view of the applicant's financial

situation, rendering it unlikely that the applicant could pay her

chosen lawyer's fees, the trial court considered it necessary in the

interests of assuring the proper course of the trial to maintain the

official defense counsel.

These grounds are, in the Commission's view, relevant and

sufficient.

Consequently the appointment of an additional defense counsel

cannot, under the circumstances of the present case, be held to have

been incompatible with the requirements of paras. 3 (c) and 1 of

Article 6 (Art. 6-1+6-3-c), taken together.

The question remains to be decided whether the reimbursement

order violated Article 6 (Art. 6) of the Convention. In this respect

it was stated in the aforementioned Croissant judgment:

"Under German Law an accused who is acquitted is, irrespective

of his means, under no obligation to pay either the court costs

or the fees of the court-appointed lawyers; all these items are

borne by the State. On the other hand, a convicted person is in

principle always bound to pay the fees and disbursements of his

court-appointed lawyers, this being held to be a normal

consequence of the conviction.

It is only in the enforcement procedure that follows the final

judgment that the financial situation of the convicted person

plays a role; in this respect, it is immaterial whether he had

sufficient means during the trial, only his situation after

conviction being relevant.

Such a system would not be compatible with Article 6 (Art. 6) of

the Convention if it adversely effected the fairness of the

proceedings. However, it cannot be said that the system

generally produces such a result.

In addition the Commission notes that it did not do so in the

present case. As already stated, the appointment of the (3)

defense counsel was compatible with the requirements of Article

6 (Art. 6). Accordingly, it is not incompatible with the

provision that the applicant is liable to pay their fees. The

national courts were invited to consider it necessary to appoint

them and the amounts claimed for them are not excessive."

These reasons apply, mutatis mutandis, to the present case and

consequently the Commission again cannot find any appearance of a

violation of Article 6 (Art. 6) of the Convention.

Finally it has to be noted that the present application does not

raise the issue as to whether it would be compatible with Article 6

para. 3 (c) (Art. 6-3-c) of the Convention for the State to continue

to seek full or partial reimbursement of expenses after the convicted

person has established, in the enforcement proceedings, that he/she

lacks sufficient means to bear the costs of his/her defense.

It follows that the application has to be rejected as being

manifestly ill-founded in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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PFISTER v. GERMANY

PFISTER v. GERMANY

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