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AS TO THE ADMISSIBILITY OF

Application No. 10551/83

by Cafer ZENGIN

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

4 March 1986 the following members being present:

MM C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

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;

- the application introduced on 11 January 1983 by Cafer ZENGIN

against the Federal Republic of Germany and registered on

12 September 1983 under file No. 10551/83;

- the judgment given by the European Court of Human Rights in the

Öztürk case on 21 February 1984 (Series A No. 73);

- the Rapporteur's first report, under Rule 40 of the Commission's

Rules of Procedure, of 29 April 1985;

- the Commission's decision of 8 May 1985 to communicate the

application to the respondent Government under Rule 42 (2)(b);

- the Government's observations of 20 September 1985;

- the applicant's reply of 3 October 1985;

- the Government's further observations of 7 November 1985;

- the Rapporteur's second report of 13 December 1985;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the parties may be

summarised as follows:

The applicant is a Turkish citizen, born in 1946 and residing

at Nordheim (Federal Republic of Germany). In the proceedings before

the Commission he is represented by Mr N. Wingerter, a lawyer

practising in Heilbronn.

On 9 October 1981, in Heilbronn, the applicant caused an

accident with his motor vehicle which resulted in approximately 5,000

DM worth of damage to the other vehicle.

By a regulatory fine order (Bussgeldbescheid) of 9 February

1982 the Office of Public Order (Amt für öffentliche Ordnung) of the

city of Heilbronn imposed on the applicant a regulatory fine

(Geldbusse) of 100 DM for careless driving (Ausserachtlassung der

nötigen Vorsicht) infringing Articles 1 para. 2 and 49 of the Road

Traffic Regulations (Strassenverkehrsordnung). This order was issued

under Article 17 of the Regulatory Offences Act (Gesetz über

Ordnungswidrigkeiten). The applicant was also ordered to pay a fee

(Gebühr) of 10 DM and expenses (Auslagen) of the Office of 4 DM.

On the applicant's objection (Einspruch) the District Court

(Amtsgericht) of Heilbronn fixed 7 May, 1.30 pm, as date and time of

the trial. At counsel's request, filed in reply to a question from the

Court, an interpreter was appointed for his hearing.

Immediately before the hearing the applicant, having discussed

the case with counsel, assisted by the interpreter, withdrew the

objection. The Court then ruled that the applicant also had to bear

the further costs of the proceedings and his own expenses.

On 26 May 1982 the Court Cashier's Office (Gerichtskasse) fixed

the costs to be paid by the applicant at 120.20 DM, of which 53 DM

represented interpreter's fees.

The applicant entered an objection (Erinnerung) against the

bill of costs to the extent that it included the interpreter's fee.

He relied on Article 6 of the Convention and referred to the

Commission's decision of 15 December 1981 admitting Application No.

8544/79 (Öztürk v. the Federal Republic of Germany, D.R. 26, 55).

The District Court dismissed the objection on 27 October 1982

on the ground that regulatory fine proceedings were administrative

proceedings to which Article 6 of the Convention did not apply.

On 10 November 1982 counsel submitted the Commission's report

of 12 May 1982 in the Öztürk case and requested the District Court to

reconsider its decision.

The District Court ruled on 25 November 1982 that counsel's

submissions did not call for an amendment of the Court's ruling of 27

October 1982 since a final decision of the European Court of Human

Rights had not yet been delivered.

COMPLAINT

The applicant submits that proceedings concerning regulatory

offences are criminal proceedings covered by Article 6 of the

Convention. He alleges a violation of Article 6 para. 3 (e) and relies

on the judgment given by the European Court of Human Rights in the

Öztürk case on 21 February 1984 (Series A No. 73).

SUBMISSIONS OF THE PARTIES

The Government submit that Article 6 para. 3 (e) of the

Convention is intended to secure fair criminal proceedings also for the

foreigner who does not understand the language used in court, and to

avoid any procedural disadvantage arising from this circumstance. This

principle was observed in the present case. The Court asked the

applicant to state whether an interpreter was required for the hearing

and an interpreter was made available following counsel's request.

In the Government's view, however, Article 6 para. 3 (e) cannot

be interpreted as obliging the Contracting States to pay the fee of an

appointed interpreter where an objection is withdrawn immediately

before the trial so that the appointment of the interpreter cannot be

cancelled in time. It must be expected of the applicant that - if

judicial control has been requested and a hearing has been fixed - he

examines in time the question of whether he wishes to uphold the

objection or to withdraw it, thereby avoiding undue administrative time

and effort. Article 109 of the Regulatory Offences Act thus provides

that the defendant has to bear the costs of the court proceedings if

he withdraws his objection to the regulatory fine order.

Moreover, regulatory offences, under the law of the Federal

Republic of Germany, are not criminal but administrative matters.

Sanctions in the form of regulatory fines are imposed by the

administrative authorities. The fact that this case involves minor

matters without criminal law consequences for the defendant do not

however free him from a responsible preparation of his proceedings and

from his obligation towards the general public to alleviate the damage.

Costs caused by attributable delays and similar circumstances have to

be borne by the person causing them. This also applies to

interpreter's fees. It would amount to a preferential treatment of the

foreign national, not covered by the purpose of Article 6 para. 3 (e),

were one to free him from such costs as well and make the tax-payer

liable for them. Particularly in view of the budgetary problems facing

the State and the priorities to be established by the organs of justice

in suppressing serious crime and in their other tasks, this is not

justified and cannot be deduced from the Convention.

The Government also observe that Article 6 para. 3 (e) applies

only to the relations between the accused and the judge and does not

cover relations between the accused and his defence counsel (No.

6185/73, Dec. 29.5.75, D.R. 2, 68).

The Government conclude that the application is manifestly

ill-founded.

The applicant submits that the present case cannot be

distinguished from the Öztürk case, where the objection against the

regulatory fine was not withdrawn before, but only during the trial.

The present applicant could not ascertain the chances of his objection

until immediately before the trial. The bill of costs did not state

that he had to pay the fee of the interpreter because of the late

withdrawal of the objection. The Heilbronn Court always includes

interpreter's fees in bills of costs, having been invited by the

Federal Minister of Justice to disregard the judgment of the European

Court of Human Rights in the Öztürk case.

The applicant here refers to:

- a circular letter of the Federal Ministry of Justice to the

Ministers of Justice of the Länder (Landesjustizverwaltungen),

dated 8 June 1984, in which the Ministry expressed the view

that the Court's judgment on the merits of 21 February 1984

in the Öztürk case "has not modified domestic law" ("das

innerstaaatliche Recht nicht geändert") and that the

conclusions to be drawn from that judgment are being

considered; and

- a further letter of 24 September 1985, in which the Ministry

stated that "the situation remains unchanged" ("der Sachstand

unverändert ist").

THE LAW

The Commission has had regard to the judgment given by the

European Court of Human Rights in the Öztürk case on 21 February 1984

(Series A No. 73). In that judgment the Court held that Article 6

para. 3 (e) (Art. 6-3-e) of the Convention had been violated.

The Commission observes that the present application, like the

Öztürk case, concerns an order to pay the fees of an interpreter who

had been appointed in court proceedings relating to a regulatory

offence.

It is disputed between the parties whether the present case,

in which the objection against the regulatory fine order was withdrawn

immediately before the District Court's hearing, can for the purposes

of Article 6 para. 3 (e) (Art. 6-3-e) be distinguished from the Öztürk

case, in which the objection was only withdrawn in the course of the

trial.

This question cannot in the Commission's view be determined at

the admissibility stage but must be decided on the basis of an

examination of the merits of the present application.

It follows that the application is not manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ZENGIN v. GERMANY

ZENGIN v. GERMANY

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