Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12355/86

by Mehmet Serif CAN

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 13 July 1987 the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H. C. KRÜGER, Secretary to the Commission.

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 August 1986

by Mehmet Serif Can against the Federal Republic of Germany and registered

on 25 August 1986 under file N° 12355/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as submitted by the applicant, may be summarised as

follows:

The applicant is a Turkish citizen born in 1961 who is at

present living in Aachen. He is represented by Mr. Rainer M. Hofmann,

a lawyer practising in Aachen.

The applicant is a Kurd. On 6 June 1985, coming from Belgium,

he and his family entered the territory of the Federal Republic of

Germany at an uncontrolled border passage in a Belgian taxi. However,

at his arrival in Aachen the applicant was apprehended by the customs

authorities. He immediately declared that he wished to apply for

political asylum.

On 7 August 1985, the District Court (Amtsgericht) of Aachen,

acting at the request of the public prosecutor (Staatsanwaltschaft),

issued a penal order (Strafbefehl) against the applicant for the

offence (Vergehen) of illegal entry (unerlaubte Einreise) under

Section 47 para. 1 (1) of the Aliens' Act (Ausländergesetz). The

applicant was thereby ordered to pay a fine in the amount of DM 100.-

On 13 August 1985, this penal order was served on the

applicant in German, information on the possibility to raise an

objection (Einspruch) being added in Turkish. The applicant, whose

mother tongue is Kurdish, states that he has only a very limited

knowledge of Turkish.

The applicant, acting through his lawyer, filed an objection

on the ground that a prosecution for illegal entry was inadmissible in

the case of persons who seek asylum (cf. Section 47 para. 6 of the

Aliens' Act read in conjunction with Article 31 para. 1 of the Geneva

Convention on the Status of Political Refugees).

The lawyer also requested on behalf of the applicant that he

should be appointed as his official defence counsel (Pflicht-

verteidiger). The reason stated was the complexity of the factual and

legal issues and the fact that the lawyer was unable to communicate

with the applicant without the assistance of an interpreter.

On 26 November 1985, the District Court rejected the latter

request. It observed that the case was not one of compulsory

representation. The interests of justice did not require the

appointment of an official defence counsel as the offence was slight

and did not present any factual or legal difficulties which would make

it impossible for the applicant to defend himself in person.

On 24 January 1986 the Regional Court (Landgericht) of Aachen

rejected an appeal against this decision on the ground that it had

been made by the lawyer and not by the applicant himself. The lawyer

could not act in his own right and therefore his appeal was

inadmissible.

On 9 April 1986 a further appeal specifically made on behalf

of the applicant was also declared inadmissible on the ground that

decisions of a trial court preceding its decision on the merits were

not capable of being separately challenged (cf. Section 305 para. 1 of

the Code of Criminal Procedure).

The applicant's constitutional appeal (Verfassungsbeschwerde)

was declared inadmissible by a three judge committee of the Federal

Constitutional Court (Bundesverfassungsgericht) on 3 June 1986. The

committee held that remedies had not been exhausted in accordance with

Section 90 of the Federal Constitutional Court Act and observed that

the impugned decisions were interim decisions incapable of being

separately challenged before the Federal Constitutional Court. The

problem of appointing an official defence counsel could be raised in

a criminal appeal following the trial court's decision on the main

issue.

The main proceedings in the present case have not yet been

completed. A trial took place before the District Court of Aachen on

17 January 1986. On this occasion the applicant was for the first

time informed in his own language (Kurdish) of the charges raised

against him. Despite the assumption that the case did not involve

difficult legal or factual issues the hearing lasted about two hours.

It was then adjourned sine die.

The proceedings were resumed on 13 February 1987. Although

the applicant had again applied on 20 January 1986 to appoint his

lawyer as an official defence counsel and had urged a decision on

27 November and 3 December 1986 this matter had not been settled before

the hearing. The lawyer appeared and made several requests for

evidence which the court rejected. The lawyer was not present at the

hearing of witnesses (three officers of the customs authority).

In its decision of the same day the District Court found the

applicant guilty of the offence of illegal entry (Section 47

para. 1 (1) of the Aliens Act) and imposed a fine of DM 100.-. It

noted that the applicant had already earlier been in the Federal

Republic and applied for political asylum, but had left after three

years before a decision was taken on this application. After his

illegal entry he had again applied for asylum and this application had

been refused by the Federal Office for the Recognition of Political

Refugees on 29 October 1986. Despite his requests for asylum the

applicant could not claim exemption from punishment under Section 267

of the Criminal Code, Section 47 (6) of the Aliens Act and Art. 31 of

the Geneva Convention. Not every illegal entry could be justified

under these provisions simply because an application for asylum was

made immediately afterwards. In the present case the applicant had

been familiar with the legal situation in the Federal Republic and

there had been no reason for him to enter the territory illegally.

The applicant declared that he intended to appeal against this

judgment in particular on the ground that no official defence counsel

had been appointed. However, a decision on the appeal is still

outstanding.

COMPLAINTS

The applicant now alleges violations of Article 6 para. 3 (a),

(b) and (c) of the Convention.

He claims that, contrary to Article 6 para. 3 (a), he was not

informed of the charges "promptly" and "in a language which he

understands" as on 13 August 1985 the penal order was served on him in

German and only 5 months later, at the trial on 17 January 1986, he

was for the first time informed of the accusations against him in

Kurdish.

As the applicant did not know the charges before this trial,

he allegedly did not have adequate time and facilities for the

preparation of his defence, as required by Article 6 para. 3 (b). He

observes in this context that the case was not as simple as had first

been assumed by the Court.

The applicant further claims that at least at the above trial

it should have become clear to the Court that the granting of free

legal assistance by the appointment of an official defence counsel was

necessary in the interests of justice. The applicant had indicated

that he wished to be represented by a lawyer and it was clear from the

circumstances that he was unable to pay for a lawyer. The fact that

he was actually assisted by a lawyer who was ready to defend him

despite certain doubts arising under the bar rules (Standesrecht) could

not deprive him of his fundamental right under Article 6 para. 3 (c).

The necessity to provide free legal assistance arose from the fact

that there was a possibility of applying the Geneva Convention and the

further fact that the applicant had not been informed of the charges

in a language which he understood. In the parallel case brought

against the applicant's wife even the public prosecutor had applied

for the appointment of an official defence counsel, but his request,

too, had been rejected by the Court.

The applicant finally invokes the Eur. Court of H.R.

judgment of 25 April 1983 in the Pakelli case (Series A No. 64) and

the subsequent decision of the Federal Constitutional Court of 11

October 1985 (NJW 1986, 1425), which held that the finding of a

violation of the Convention by failure to appoint an official defence

counsel does not oblige the trial court to reopen the criminal

proceedings. This, it is argued, means that a complaint lodged with

the Commission after the final conclusion of the criminal proceedings

would not be effective. It must therefore in principle be possible

to raise the above complaints already at the present stage. Only in

this way can payment of the lawyer be ensured in any event, and not

only if the applicant should finally be acquitted.

THE LAW

The applicant alleges violations of his rights under Article 6 para. 3

(a), (b) and (c) (Art. 6-3-a, 6-3-b, 6-3-c) of the Convention in criminal

proceedings taken against him on a charge of illegal entry.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of these provisions as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case the applicant failed to await the outcome

of the criminal appeal proceedings in which he could raise his above

complaints under the applicable rules of the Code of Criminal Procedure.

He has, therefore, not exhausted the remedies available to him under

German law.

Moreover, an examination of the case does not disclose the

existence of any special circumstances which might have absolved the

applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at his

disposal. It is true that in its decision of 11 October 1985 the

Federal Constitutional Court denied a necessity to reopen criminal proceedings

after a finding by the European Court of Human Rights that the proceedings in

question involved a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention. However, the conclusion which the applicant wishes to draw from

this decision, namely that German law does not provide for effective remedies

to prevent a violation of the Convention in this respect, is not correct. The

Federal Constitutional Court's decision only rules out the reopening of

criminal proceedings after their conclusion. It does in no way exclude the

possibility that remedies taken before the final conclusion of the criminal

proceedings in question might effectively redress a situation which is alleged

to be contrary to the Convention, in particular as the Convention is part of

the domestic law of the Federal Republic and can be invoked before the criminal

courts. The applicant thus can reasonably be expected to make use of the

remedies suggested in the decisions of the Regional Court of Aachen of 9 April

1986 and of the Federal Constitutional Court of 3 June 1986.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For this reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

H. C. KRÜGER C. A. NØRGAARD

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CAN v. THE FEDERAL REPUBLIC OF GERMANY

CAN v. THE FEDERAL REPUBLIC OF GERMANY

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