Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11665/85

by Arumugan RAJARATNAM

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;

- the application introduced on 20 July 1985 by Armugugan

RAJARATNAM against the Federal Republic of Germany and registered

on 25 July 1985 under File No. 11665/85;

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

Commission's Rules of Procedure, of 28 April 1986;

- the Commission's decision of 7 July 1986 to give notice of

the application to the respondent Government and to invite them to

present before 25 October 1986 their observations in writing on the

admissibility and merits of the application;

- the Government's letter of 29 October 1986 requesting an

extension of the above time-limit;

- the President's order of 14 November extending the

time-limit to 15 December 1986;

- the Government's letter of 5 January 1987 requesting a

further extension of the time-limit;

- the President's order of 23 January extending the

time-limit to 31 January 1987;

- the Government's letter, enclosing a copy of their letter

to the applicant's representative with a draft agreement, of

13 February 1987;

- the Government's letter of 30 March 1987 enclosing the

agreement reached between the parties;

- the Rapporteur's second report of 1 June 1987;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant is a citizen of Sri Lanka, born in 1956 and

residing in Heilbronn (Federal Republic of Germany). In the

proceedings before the Commission he is represented by Rechtsanwalt

N. Wingerter, a lawyer practising in Heilbronn.

By a decision of 7 May 1981 the Heilbronn administrative

authorities imposed on the applicant a fine (Bussgeld) of 100 DM for

contravening Articles 35 and 20 of the Act on Asylum Proceedings

(Asylverfahrensgesetz).

On the applicant's objection (Einspruch) a hearing took place

before the District Court (Amtsgericht) of Heilbronn on 26 July 1984.

At this hearing the applicant was assisted by an interpreter.

By its judgment of the same day the District Court again

imposed a fine of 100 DM on the applicant. It further ordered that he

should pay the costs of the proceedings and his own expenses.

On 30 July 1984 the applicant filed an appeal on points of law

(Rechtsbeschwerde) against the above judgment. This appeal was

withdrawn on 16 November 1984. On the same day the District Court

confirmed that the applicant should bear the costs of the proceedings

and his own expenses.

On 17 January 1985 the Public Prosecutor's Office (Staats-

anwaltschaft) of Heilbronn fixed the amount of costs to be paid by the

applicant, of which 77 DM represented interpreter's fees.

The applicant entered an appeal (Erinnerung) against the bill

of costs with regard to the interpreter's fees, but on 7 March 1985

the District Court decided not to amend its order as to costs.

The applicant's appeal (Beschwerde) against this decision was

dismissed by the Regional Court (Landgericht) of Heidelberg on 31 May

1985. The Regional Court referred to No. 1904 of the List of Costs

(Kostenverzeichnis) of the Courts Costs Act (Gerichtskostengesetz)

which in its second sentence exempts fees of interpreters appointed in

criminal proceedings for defendants who do not understand German. The

Court observed that this exemption, enacted after the ratification of

the Convention, did not cover proceedings concerning regulatory

offences but only criminal proceedings in the sense of German law. As

lex posterior it prevailed over the Convention which in domestic law

had the same rank as ordinary federal law. The Court noted the

alleged conflict between the judgment given by the European Court of

Human Rights in the Öztürk case on 21 February 1984, and the List of

Costs as amended in 1980/83. It observed in this respect that it was

for the national legislator, and not for domestic courts, to bring the

Courts Costs Act into line with the recent case-law of the European

Court of Human Rights.

COMPLAINT

The applicant complained that he was wrongly ordered to pay the

interpretation costs. He alleged a violation of Article 6 para. 3 (e)

of the Convention and relied on the judgment of the European Court of

Human Rights of 21 February 1984 in the Öztürk case (Series A No. 73).

The applicant submitted that a constitutional complaint

(Verfassungsbeschwerde) would have had no prospect of success and

referred in this connection to the decision of the Federal

Constitutional Court in the Akdogan case (Application No. 11394/85).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 July and registered on

25 July 1985.

On 7 July 1986 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to

present before 25 October 1986 their observations in writing on the

admissibility and merits of the application.

The above time-limit was at the Government's requests extended

to 15 December 1986 and subsequently to 31 January 1987.

By a letter of 13 February 1987 the Government informed the

Commission of the terms of a draft agreement which they had sent to

Rechtsanwalt Wingerter.

Under cover of their letter of 30 March 1987 the Government

submitted the agreement reached between the parties.

The agreement reads as follows (German original):

"V e r e i n b a r u n g

betr. das am 25. Juli 1985 von der Europäischen

Menschenrechtskommission registrierte Individualbeschwerde-

verfahren No. 11665/85

z w i s c h e n

Herrn Arumugan Rajaratnam, Mühlstrasse 11, 7100 Heilbronn-Böckingen,

Beschwerdeführer, vertreten durch Rechtsanwälte Norbert Wingerter,

Volker Hohbach u.a., Heilbronn

u n d

der Bundesrepublik Detuschland, vertreten durch Ministerialdirigentin

Irene Maier, Bundesministerium der Justiz, 5300 Bonn 2

1. Dem Beschwerdeführer werden die in dem Bussgeldverfahren vor

dem Amtsgericht Heilbronn - 32 OWi 8398/83 entstandenen und

von ihm gemäss Kostenrechnung - 78 VRS 8223/84 - vom 17.1.1985

gezahlten Dolmetscherkosten von 77,- DM zurückerstattet.

2. Die Bundesregierung zahlt dem Beschwerdeführer zur Abgeltung

der ihm im Erinnerungsverfahren gegen diesen Kostenansatz

und anlässlich der Einlegung der Indiviualbeschwerde bei

der Europäischen Menschenrechtskommission entstandenen Kosten

und Auslagen einen Betrag von insgesamt 600,- DM (sechshundert)

D-Mark.

3. Die Beträge zu 1. und 2. werden an die Verfahrensbevoll-

mächtigten des Beschwerdeführers, Rechtsanwälte Norbert

Wingerter, Volker Hohbach u.a. überwiesen, die sich

verpflichten, die Bundesregierung hinsichtlich der Zahlung

gegenüber dem Beschwerdeführer freizustellen.

4. Der Beschwerdeführer erklärt die Beschwerde hiermit für

erledigt und ist mit der Streichung aus dem Register durch

die Europäische Kommission für Menschenrechte einverstanden.

Bonn, den 13. Februar 1987 Heilbronn, den 25.3.87

gez. Maier gez. Wingerter

(Ministerialdirigentin (Rechtsanwalt

Irene Maier) Norbert Wingerter)"

(English translation by the Council of Europe)

"A g r e e m e n t

concerning individual Application No. 11665/85 registered with the

European Commission of Human Rights on 25 July 1985

b e t w e e n

Mr. Arumugan Rajaratnam, Mühlstrasse 11, 7100 Heilbronn-Böckingen,

applicant, represented by MM. Norbert Wingerter, Volker Hohbach and

others, lawyers, Heilbronn

a n d

the Federal Republic of Germany, represented by Mrs. Irene Maier,

Ministerialdirigentin, Federal Ministry of Justice, 5300 Bonn 2

1. Interpretation costs of DM 77.- incurred in regulatory

proceedings (Ref. 32 OWi 8398/83) before the Heilbronn District Court

and paid by the applicant in pursuance of the bill of costs (Ref. 78

VRS 8223/84) of 17 January 1985 shall be reimbursed.

2. In satisfaction of the costs incurred by the applicant in the

objection proceedings to the above-mentioned bill of costs and the

costs incurred in the submission of the applicant's complaint to the

European Commission of Human Rights, the Federal Republic shall pay to

the applicant the sum of 600 DM (six hundred Deutschmark).

3. The sums referred to in paragraphs 1. and 2. above shall be

paid to the applicant's respresentatives in the proceedings, MM.

Norbert Wingerter, Volker Hohbach and others, lawyers, who undertake

to indemnify the Federal Government against the applicant in respect

of the payment.

4. The applicant declares that the application is settled and

that he agrees to it being struck out of the list of cases of the

European Commission of Human Rights.

Bonn, 13 February 1987 Heilbronn, 25 March 1987

(signed) Maier (signed) Wingerter

(Ministerialdirigentin (Rechtsanwalt

Irene Maier) Norbert Wingerter)"

The Government state that they have arranged for the sum of

DM 677.- to be paid. They request that the application be struck out

of the Commission's list of cases.

REASONS FOR THE DECISION

Rule 44 para. 1 of the Rules of Procedure provides:

"1. Unless it considers that any reason of a general

character affecting the observance of the Convention

justifies further examination of an application, the

Commission may strike it out of its list of cases:

a. where the applicant states that he wishes to

withdraw his application; or

b. where the circumstances .... lead to the conclusion

that he does not intend to pursue his application."

The Commission notes that the parties have reached an

agreement on the applicant's claims. The Government request that

the application be struck off the list. The applicant states that

his application is settled and he agrees to the Government's request.

The Commission finds no reason of a general character

affecting the observance of the Convention which, following the above

agreement between the parties, necessitates a further examination of

the present application.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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RAJARATNAM v. THE FEDERAL REPUBLIC OF GERMANY

RAJARATNAM v. THE FEDERAL REPUBLIC OF GERMANY

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