Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13611/88

by Claus CROISSANT

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 8 December 1989, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy 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 3 December 1987

by Klaus Croissant against the Federal Republic of Germany and

registered on 15 February 1988 under file No. 13611/88;

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

Rules of Procedure of the Commission;

Having regard to :

- the Commission's decision of 4 July 1988 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on the

admissibility and merits of the complaint that the

applicant has to bear the costs caused by the appointment

against his will of a third official defence counsel;

- the observations submitted by the respondent Government on

2 December 1988 and the observations in reply submitted

by the applicant on 30 January 1989;

- the parties' oral submissions at the hearing of

8 December 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1931 and living in

Berlin where he practises as a lawyer. He is represented by Mrs.

Sybille M. Meier and Mrs. Angelika Grotehenne, both practising as

lawyers in Berlin.

The facts, not in dispute between the parties, may be

summarised as follows:

On 16 February 1979 the applicant was convicted by the

Stuttgart Regional Court (Landgericht) of having supported a

criminal association. He was sentenced to two years and six months

imprisonment. Furthermore the applicant was disqualified to practise

as a lawyer for a period of four years. He was also ordered to bear

the costs of the proceedings including his necessary expenses.

At his trial the applicant was defended by two chosen

defence counsel and two official defence counsel who had been

appointed at his request. In addition, the Regional Court appointed

a third official defence counsel, Mr. H. The applicant raised

objections against the latter appointment, requesting that another

lawyer, Mr. K., be appointed instead. These objections were rejected

by the Court on 1 March 1978. The Court stated that the appointment

of a third official defence counsel was necessary in view of the

complexity and difficulty of the matter and the possible long duration

of the trial. It served to ensure that the applicant was adequately

defended throughout the trial. This decision was confirmed by the

Stuttgart Court of Appeal (Oberlandesgericht) on 6 March 1978.

On 27 December 1979 the Treasury of the Stuttgart Regional

Court (Gerichtskasse) fixed the costs of the proceedings in the total

amount of DM 239,439.30, including DM 209,683.20 for fees and expenses

paid to the three official defence counsel. The applicant lodged an

objection (Erinnerung) against this bill (Kostenrechnung) arguing that

free legal aid in the sense of Article 6 para. 3 (c) of the Convention

was granted once and forever. Referring to the Commission's case-law

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

6.5.82, unpublished) the Stuttgart Regional Court rejected the

objection on 20 November 1986 as being unfounded.

The applicant lodged an appeal (Beschwerde) to the Stuttgart

Court of Appeal. He maintained his arguments and added that they were

particularly relevant in respect of the third defence counsel, Mr. H,

who had been appointed against his will. The appeal was dismissed on

30 April 1987. The Court of Appeal confirmed the Regional Court's

reasoning and added that the appointment of a third official

defence counsel had been necessary to ensure an adequate defence,

given the importance and complexity of the case and the foreseeable

long duration of the proceedings. It was objectively justified that

the presiding judge, by appointing a third official defence counsel in

the interest of a proper and speedy administration of justice, ensured

that the trial could be carried through without hindrance.

The applicant's constitutional appeal was rejected on 23 June 1987

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

verfassungsgericht) as offering no prospects of success. The decision

refers to the interpretation of Article 6 para. 3 (c) of the

Convention by the Commission as being in no way arbitrary. It points

out that the reason for the obligation of a convicted person to pay

the costs of the proceedings is that he caused them by his own

behaviour. While the principle of a fair trial requires that an

indigent accused obtains free legal aid if necessary, it does not

exclude that the costs caused thereby be imposed on him later in the

case of his conviction. The law on costs offers other possibilities

of taking into account subsisting economic difficulties of the

convicted (such as payment facilities, protection against execution).

Finally, the appellate court's finding, that the appointment of a

third official defence counsel was necessary in view of the complexity

of the matter and the foreseeable long duration of the criminal

proceedings, does not disclose any arbitrariness.

The applicant's request for a remission was to no avail.

Requests for a respite (Stundung) were likewise rejected. An appeal

(Beschwerde) concerning the latest request was successful in third

instance before the Stuttgart Court of Appeal which on 18 August 1989

quashed the decisions appealed from and sent the case back to the

District Court for re-examination.

COMPLAINTS

The applicant requests the Commission to reconsider the

question of whether free legal aid in the sense of Article 6 para. 3 (c)

of the Convention means free once and for all. He refers to a

decision of 23 March 1985 (published in NStZ 1985 p. 371) in which the

Düsseldorf Court of Appeal held that free legal aid in the sense of

Article 6 para. 3 (c) excludes imposing its costs on the accused in

case of his conviction.

A further and particularly serious violation of Article 6

paras. 1 and 3 (c) arises in the applicant's opinion from the

fact that he is required to bear the costs of a third official defence

counsel who was appointed against the applicant's will for the sole

purpose of ensuring that the trial could be carried through even if

the chosen official defence counsel discontinued to defend the accused

for one reason or another. A "substitute official defence counsel"

(Ersatzverteidiger) was not provided for in the legal aid system. The

appointment of a "substitute" defence counsel only served public

interests and therefore the costs caused thereby had to be borne by

the treasury. The applicant points out that the measure turned out

to be unnecessary as the two official defence counsel whom he had

accepted attended the trial throughout the 73 days of hearings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 December 1987 and

registered on 15 February 1988.

On 4 July 1988 the Commission decided to invite the respondent

Government to submit observations on the admissibility and merits of

the application and to limit their observations to the complaint under

Article 6 para. 3 (c) of the Convention that the applicant has to bear

the costs caused by the appointment against his will of a third

official defence counsel. The Commission also invited the parties to

comment on this complaint in the light of Article 1 of Protocol No. 1

to the Convention.

The Government's observations were received by a letter dated

2 December 1988 and the applicant's observations in reply were dated

30 January 1989.

On 9 May 1989 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application. At the

hearing which was held on 8 December 1989 the parties were represented

as follows:

The Government

Mr. Meyer-Ladewig, Ministerialdirigent, Federal Ministry of Justice, Agent

Mr. Udo Heisseler, Presiding Judge at the Stuttgart Regional Court, Adviser

Mr. David Connor, Federal Ministry of Justice, Adviser

The Applicant

Mr. Klaus Eschen, lawyer

The applicant in person.

THE LAW

The applicant complains of a breach of Article 6 paras. 1 and

3 (c) (Art. 6-1, 6-3-c) of the Convention because he was ordered,

after his conviction, to pay the costs caused by his official defence

counsel, in particular those of the third official defence counsel,

who was appointed without the applicant's consent.

The Commission first notes that proceedings relating to the

applicant's request for a respite or payment facilities are still

pending. However, the respondent Government have not raised any

objection under Article 26 (Art. 26) of the Convention as regards the

exhaustion of domestic remedies and the Commission does not consider

a request for respite as constituting an effective remedy in respect

of the alleged violation. The decision on this request will mainly

depend on an evaluation of the applicant's financial capacity to pay

his debts but will not determine whether the imposition of the legal

aid costs on the applicant violated his Convention rights. There is

consequently no reason to reject the application under Article 26

(Art. 26) of the Convention for non-exhaustion of domestic remedies.

To the extent that it is relevant in the present case,

Article 6 (Art. 6) of the Convention provides:

"1. In the determination of ... any criminal charge

..., everyone is entitled to a fair ... hearing

...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(c) ... if he has not sufficient means to pay

for legal assistance, to be given it free when the

interests of justice so require;

..."

The Government consider that these provisions are concerned

with the fairness of the proceedings and the effectiveness of the

defence and these rights were not affected but strengthened by the

appointment of three official defence counsel.

The Commission has already decided in previous cases that it

is not contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention to impose legal aid costs on the convicted defendant and to

claim reimbursement when his financial situation allows payment

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

Dec. 6.5.82, unpublished).

However, the principal complaint in the present case is the

applicant's allegation that the imposition of costs for an additional

third defence counsel, who was appointed only to secure the trial, was

unreasonable and unfair. This complaint raises a complex issue of law

under the Convention the determination of which must be reserved to an

examination of the merits.

The Commission does not find it appropriate to declare

inadmissible the remaining part of the application which concerns the

imposition of the costs caused by the appointment of the other legal

aid counsel as it equally concerns the interpretation of Article 6

para. 3 (c), (Art. 6-3-c) which is at issue in the entire case.

No other grounds for inadmissibility have been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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CROISSANT v. GERMANY

CROISSANT v. GERMANY

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