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K. v. GERMANY

Doc ref: 11626/85 • ECHR ID: 001-124473

Document date: May 1, 1986

Inbound citations: 0
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Cited paragraphs: 0
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K. v. GERMANY

Doc ref: 11626/85 • ECHR ID: 001-124473

Document date: May 1, 1986

Cited paragraphs only

The European Commission of Human Rights sitting in private on

6 May 1986, the following members being present:

MM C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

M.A. TRIANTAFYLLIDES

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

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 13 January 1985

by G.K. against the Federal Republic of Germany and registered on 9

July 1985 under file No. 11626/85;

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 applicant is a German citizen, born in 1944 and presently

detained in prison in Bruchsal. He is represented by Messrs Wingerter

and Others, lawyers in Heilbronn.

On 18 February 1976 the applicant was convicted by the

Heilbronn Jury Court (Schwurgericht) of double murder and sentenced

to life imprisonment. This judgment was quashed by the Federal Court

(Bundesgerichtshof) and the case sent back to the Stuttgart Regional

Court (Landgericht) for a new trial. On 7 July 1977 the applicant was

again convicted of double murder. This judgment was again quashed.

After a third trial the Stuttgart Regional Court gave a partial

decision on 29 November 1978. The applicant was convicted on one

count of murder and sentenced to fifteen years' imprisonment. By

further decision of 7 July 1980 he was convicted of a further murder

and sentenced to life imprisonment. This sentence included the

previous sentence of 29 November 1978. The court further ordered the

applicant's detention in a mental hospital.

The costs of the proceedings were imposed on the applicant.

They amounted, according to a bill of costs of 16 June 1983, to

DM 80,454.70 including DM 20,715.82 concerning fees for the official

defence counsel (Pflichtverteidigergebühren). The applicant's

objections (Erinnerung) against the bill of costs were rejected by the

Stuttgart Regional Court on 20 December 1984. The court stated that

Article 6 para. 3 (c) of the Convention only required that free legal

aid was granted to a destitute defendant without any conditions. This

did not mean, however, that legal aid was free once and forever.

On 28 February 1985 the Stuttgart Court of Appeal

(Oberlandesgericht) confirmed the Regional Court's decision stating

that according to prevailing opinion and the Commission's

jurisprudence Article 6 para. 3 (c) of the Convention did not exclude

that a convicted person, who was ordered to pay the costs of the

proceedings, also had to reimburse the costs caused by the necessity

to afford free legal assistance.

The applicant's constitutional complaint was rejected by a

group of three judges of the Federal Constitutional Court (Bundes-

verfassungsgericht) on 10 May 1985. The Court stated that the

decisions complained of did not violate constitutional rights. It

pointed out that the law on costs contained provisions allowing to

take into account financial difficulties of the convicted person by

granting payment facilities. Sufficient facilities had in fact been

accorded to the applicant.

It follows from the applicant's statements that his monthly

income in prison amounts to approximately DM 150 per month. He has to

pay monthly instalments of DM 25 to the treasury.

COMPLAINTS

The applicant considers that in view of his life imprisonment

and his income situation it violates Article 6 para. 3 (c) of the

Convention that for the rest of his life he is burdened with the

obligation to reimburse the costs caused by his legal assistance. He

points out that in a decision of 21 March 1985 the Düsseldorf Court of

Appeal expressed the opinion that "free" in the sense of Article 6

para. 3 (c) meant that a destitute defendant who had been granted

legal aid could never be requested reimbursement even if after his

conviction his financial situation improved.

THE LAW

The applicant complains that as a consequence of his

conviction he has to reimburse in monthly instalments the costs caused

by his official defence counsel who had been appointed to him in

accordance with Article 6 para. 3 (c) of the Convention, which

provides for free legal assistance if the defendant does not have

sufficient means and if the interests of justice so require.

However, the Commission has already decided that it is not

contrary to this provision if the accused has to pay the costs of his

legal aid counsel after final conviction unless his means remain

insufficient (Dec. No. 9365/81, 6.5.82, D.R. 28 p. 229 and No. 9394/82

unpublished). In the present case the applicant, who is serving a

life sentence, has to pay monthly instalments of DM 25 while his

monthly income amounts to some DM 150. It can in these circumstances

not be found that the German authorities did not sufficiently take

into account the applicant's financial situation and imposed a burden

on him which had to be considered incompatible with the purposes of

Article 6 para. 3 (c) of the Convention.

It follows that the application is manifestly ill-founded

within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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