Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19070/91

by J.B.

against the Federal Republic of Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1992, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C. L. ROZAKIS

Mrs. J. LIDDY

MM. M. P. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to First 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 26 June 1991 by

J.B. against the Federal Republic of Germany and registered on 13

November 1991 under file No. 19070/91;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

19070/91 - 2

THE FACTS

The applicant is a German citizen born in 1927 and living in

Lindau. He is represented by Mr. Peter Kragler, a lawyer practising

in Munich.

It follows from his statements and the documents submitted that

on 19 November 1985, the applicant was indicted together with others

of tax evasion.

On 25 March 1986 the applicant's defence counsel, Mr. Kragler,

submitted observations in writing of some 133 pages.

On 11 November 1986 the Regional Court (Landgericht) in Augsburg

admitted the indictment to the extent that the applicant was accused

of continued aiding and abetting to the offence of income tax evasion.

Insofar as the applicant had been indicted of continued breach of trust

committed together with one E.G, the Court considered that the

prosecution had not presented sufficient evidence. On the contrary it

considered that there was circumstantial evidence in support of the

allegations made by the defence. Under these circumstances it was

considered to be unlikely that the applicant had committed a criminal

offence as alleged in the indictment. The Court likewise denied the

prospects of success with regard to a second charge of breach of trust,

stating again that there was not sufficient evidence although in this

case all possible oral and written evidence had been obtained. As

regards a third count of breach of trust the Court considered that the

facts as established did not disclose the alleged violation. Finally,

insofar as the applicant had been accused of having obtained money on

the basis of faked contracts, the Court considered that the applicant

had in fact rendered services and the payments made in return had

therefore been justified and did not constitute bribe money.

To the extent that the proceedings were discontinued the Court

ordered that the treasury pay the costs of the proceedings and the

necessary expenses incurred by the accused.

The appeal of the public prosecutor (Staatsanwaltschaft) against

the refusal by the Regional Court to admit certain parts of the

indictment was rejected by the Court of Appeal (Oberlandesgericht) in

Munich on 26 April 1989.

On 23 July 1990 the Regional Court (Landgericht) in Augsburg

decided that the applicant's necessary expenses in the amount of

2063.97 DM had to be reimbursed with 4% interest as from 18 July 1990.

This sum contained lawyer's fees of approximately 500 DM. The

applicant had claimed lawyer's fees in the amount of 58,500 DM. The

Court stated, however, that according to Section 464a (2) No. 2 of the

Code of Criminal Procedure (Strafprozeßordnung) only the necessary

expenses of a defendant could be reimbursed. These expenses comprised

fees and expenditures of a lawyer to the extent recognised under

Section 91 (2) of the Code of Civil Procedure (Zivilprozeßordnung).

According to the jurisprudence of the appellate courts, however, fees

which had been agreed upon between the lawyer and his client could not

be considered insofar as they exceeded the maximum fees provided for

under the law (gesetzliche Höchstgebühren). Even in extremely

difficult and complex criminal cases only the legal fees (gesetzliche

Vergütung) could be reimbursed.

- 3 - 19070/91

The Court furthermore refused to acknowledge the totality of the

legal fees due by the applicant to his lawyer. It stated that according

to the power of attorney signed by the applicant, the lawyer had not

only been charged to defend him against all charges mentioned in the

indictment but also to represent him in all other civil and criminal

proceedings related to the matter. Therefore the fees in question were

not only due for the applicant's defence against the charges which were

eventually dropped but also in part related to matters still pending.

The applicant's objection (Erinnerung) against this decision was

rejected by the Regional Court on 12 October 1990.

An immediate appeal (sofortige Beschwerde) was rejected by the

Munich Court of Appeal on 31 October 1990.

The applicant then lodged a constitutional complaint which was

rejected by three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 19 February 1991 as offering no prospects

of success.

It is stated in the decision that it was constant practice that

only the legal fees of chosen defence counsel be reimbursed in case an

indictment is not admitted for trial. This practice was not arbitrary.

Furthermore it did not violate the applicant's right to a fair trial

as guaranteed by the European Convention on Human Rights as neither the

Convention nor the German Constitution provided for reimbursement of

costs of chosen defence counsel in the event that an accused is not

convicted.

COMPLAINTS

The applicant complaints of the refusal of the German judicial

authorities to reimburse the necessary expenses incurred by him on

account of his being defended by a counsel in criminal proceedings

which however did not result in his conviction. He submits that the

prosecution arbitrarily instituted complex and extensive investigation

proceedings against him and thereby obliged him to have recourse to the

assistance of an expensive lawyer although eventually it turned out

that the charges were unjustified. He submits that in the sphere of

economic crimes such proceedings were more and more often instituted

in a negligent manner and were a serious threat to the person concerned

in view of the high expenses involved often resulting in important

losses and even bankruptcy. He alleges violations of Articles 5 and

6 of the Convention.

THE LAW

The applicant complains that defence costs allegedly incurred by

him in connection with criminal proceedings which were partly

discontinued were not fully reimbursed by the treasury. However, the

Commission's case-law Article 6 para. 2 read in conjunction with

Article 5 para. 5 (Art. 6-2+5-5) contains no obligation on States to

pay compensation to an acquitted person for his detention on remand if

the detention was justified under Article 5 para. 1 (c) (Art. 5-1-c)

(see No. 5969/72, Dec. 19.12.74, D.R. 2 p. 52); still less can a person

against whom proceedings have been discontinued claim that this

provision requires the State to accept the costs of his defence (No.

9531/81, Dec. 6.10.82, D.R. 31 p. 213).

19070/91 - 4 -

The Commission cannot find that the proceedings against the

applicant were introduced and maintained arbitrarily nor that the

German courts's calculation of the costs to be reimbursed was unlawful

or that the courts have disregarded any relevant facts.

The examination of this application does not therefore disclose

any appearance of a violation of the rights and freedoms set out in the

Convention and in particular in the Articles invoked by the applicant.

It follows that the application is manifestly ill-founded within

the meaning of 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 Acting President of the First Chamber

(M. de SALVIA) (F. ERMACORA)

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