Lexploria

The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

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

Having regard to Art. 25 (art.25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 August 1985 by S.Y.

against the Federal Republic of Germany and registered on 3 October

1985 under file No. 11777/85;

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 citizen of Sri Lanka of Tamil origin, born in 1953

and presently living in Gundelsheim. He is represented by Mr

Wingerter and Partners, lawyers practising in Heilbronn.

It appears from his statements and the documents submitted by him that

the applicant came to the Federal Republic of Germany in 1979 and

requested political asylum. He is, according to statements made by

him before the German police, working in a factory and earning about

DM 1,000 per month after taxes. The proceedings concerning the

applicant's request for asylum are still pending and the applicant's

residence permit is provisionally limited to the district of

Heilbronn. A violation of the obligation not to leave the district of

Heilbronn pending the asylum proceedings is punishable under the Act

on Asylum Proceedings (Asylverfahrensgesetz).

As the applicant was apprehended on two occasions, i.e. on 4 May 1984

and 3 June 1984, outside the borders of the district of Heilbronn, he

was summoned for an interrogation (Beschuldigtenvernehmung) by the

police. This interrogation took place on 30 July 1984. According to

the protocol, signed by the applicant and a police officer, on this

interrogation, the applicant was informed about his rights and

declared himself willing to comment on the charge laid against him. He

stated that he knew a little German and did not, for the purpose of

the interrogation by the police, need an interpreter. He then

explained that he had left the district of Heilbronn on the two

occasions in question because friends of his living in other parts of

the Federal Republic needed his help and he had no time to obtain an

authorisation by the competent authority.

The police officer who interrogated the applicant noted at the end of

the protocol that the applicant's German was not fluent (gebrochen)

and the assistance of an interpreter was therefore advisable in case

of a court hearing.

On 11 September 1984 the Heilbronn District Court (Amtsgericht) issued

an order (Strafbefehl) against the applicant imposing a fine of eight

day rates of DM 20 each for having repeatedly violated his obligation

not to leave the district of Heilbronn. The order contains a short

paragraph indicating the facts and names four witnesses, mostly police

officers.

The applicant raised objections (Einspruch) against the above order of

11 September 1984.

On 27 September 1984 his chosen defence counsel, Mr Hohbach, of

Wingerter and Partners, requested that he be appointed as the

applicant's official defence counsel. He stated that, in view of his

personal and cultural background, the applicant could not defend

himself personally. Counsel also requested that the applicant be

provided with a translation of:

- the legal provisions relevant in his case;

- a commentary on these provisions;

- the contents of the file.

The motion was rejected by the District Court on 16 January 1985.

This order was confirmed by the Heilbronn Regional Court (Landgericht)

on 4 February 1985. The court stated that the matter was not at all

complicated. It further pointed out that the applicant had been

living in the Federal Republic of Germany since 1980 and had found

employment. Consequently the German legal system was not completely

unknown to him. Furthermore he was able to comment on the charges

laid against him when he was interrogated by the police. In these

circumstances it could be expected that he would be able to defend

himself personally and that the judge would take sufficient care of

the situation in order to make sure that the principle of a fair trial

was respected.

On 8 March 1985 the District Court rejected another motion of the

applicant's chosen defence counsel, Mr Hohbach, who had requested that

his client be provided with a translation of the order of

11 September 1984. The court pointed out that the applicant had

declared to the police, when he was interrogated on 30 July 1984, that

he knew German sufficiently well and did not need the assistance of an

interpreter. This order was confirmed by the Regional Court on

25 March 1985. The court stated that the question whether and which

documents had to be translated depended on the circumstances of each

particular case. While the applicant was not able to read German he

understood it well enough to be able to prepare his defence with his

chosen defence counsel. It should be no problem for counsel to

explain to the applicant the contents of the order of

11 September 1984.

In a further decision of 29 April 1985 the Regional Court rejected

another appeal lodged by the applicant against the refusal to provide

translations of all decisions so far rendered in his case.

In the meanwhile, on 9 April 1985, the applicant had lodged a

constitutional appeal against the decision of 25 March 1985. This

appeal was rejected on 22 April 1985 by a group of three judges of the

Federal Constitutional Court (Bundesverfassungsgericht) as being

inadmissible.

The applicant was summoned to appear for a hearing of his case on

7 May 1985. The hearing, however, allegedly had to be adjourned

because the judge realised that the applicant needed an interpreter

who had not been invited to assist at the hearing of 7 May 1985.

COMPLAINTS

The applicant complains that so far he has never been informed about

the charges raised against him in a language which he understands,

i.e. in Tamil. He submits that he only has a very limited grasp of

the German language and cannot read German at all. His counsel also

raises doubts as to whether the applicant understood what had been

drawn up in the police protocol concerning the applicant's

interrogation of 30 July 1984.

Given his financial and personal situation as a foreigner he should

have been granted legal aid. He should at least have been provided

with a translation of the order of 11 September 1984 as well as of all

subsequent decisions which determined the future proceedings

(verfahrensgestaltende Schriftstücke). He argues that, regardless of

whether or not he will eventually be assisted by an interpreter at his

trial, the guarantees of Article 6 (art. 6) of the Convention are

already violated if in the course of the investigation proceedings he

is not already informed in his own language about the charge levelled

against him enabling him to prepare his defence adequately. He points

out that according to No. 181 of the Administrative Regulations

concerning criminal and regulatory offence proceedings an order

imposing a fine has to be translated if it concerns a foreigner who

does not have a sufficient knowledge of the German language.

He invokes in particular Articles 5 para. 2 (art. 5-2), and 6 para. 1

(art. 6-1) and 3 (a) (art. 6-3-a) of the Convention.

THE LAW

The applicant has complained that in investigation proceedings

relating to the determination of a charge of his having violated

provisions of the Act on Asylum Proceedings (Asylverfahrensgesetz) he

has not yet been informed in a language which he understands and in

detail of the nature and cause of the accusation against him and of

the contents of other decisions given in these proceedings. He also

complains that his request to be given free legal assistance was

rejected.

The Commission notes that the applicant's constitutional appeal, which

was lodged on time, was rejected as being inadmissible as apparently

it was considered to be unsubstantiated and that the proceedings

complained of are still pending.

Even assuming, however, that domestic remedies have been exhausted as

required by Article 26 (art. 26) of the Convention, the Commission

first observes that Article 5 (art. 5) of the Convention protects

against arbitrary arrest and detention and is therefore not applicable

in the present case as the applicant was not deprived of his liberty

in the course of the proceedings in question.

As regards the applicant's complaints under Article 6 (art. 6) of the

Convention the Commission points out that the conformity of a trial

with the requirements of that provision must, in principle, be

assessed on the basis of the trial as a whole (No. 9000/80,

Dec. 11.3.82, D.R. 28, p. 127). It is true that the application of

Article 6 (art. 6) cannot be excluded categorically and without

exception with regard to the pretrial stage of criminal proceedings

(Can v. Austria, Comm. Report 12.7.84, para. 49). It is in fact a

fundamental part of the preparation of the defence that the accused is

informed about the nature and cause of the accusation against him

(Article 6 para. 3 (a) (art. 6-3-a)) and also that he is given free

legal assistance if he is indigent and if the interests of justice so

require (Article 6 para. 3 (c) (art. 6-3-c)).

However, as regards the right to information, it has to be noted that

on 30 July 1984 the applicant accepted to be interrogated by the

police. On that occasion he was informed about the accusations

against him and commented on them. According to the protocol drawn up

by the police on 30 July 1984 the applicant had been able to converse,

although in broken German, with the interrogating police officer. The

applicant has not alleged that he did not understand at all what was

discussed on 30 July 1984 or that the record of his interrogation by

the police incorrectly reproduced the statement made by him in

relation to the accusations against him. As was pointed out by the

German courts the applicant has been living and working in the Federal

Republic of Germany since 1980. In these circumstances it cannot be

regarded as arbitrary that the German courts concluded from the

protocol on the applicant's interrogation on 30 July 1984, and also

from the fact that subsequent to the order of 11 September 1984 he

chose a counsel for his defence, that the applicant had been informed

about the accusation against him in an adequate and sufficient manner

enabling him to prepare his defence and to discuss the matter with his

counsel. Apart from the order of 11 September 1984 there are no

decisions relevant for the determination of the charge against the

applicant necessitating translation in order to enable the applicant

to continue preparing his defence.

As regards the alleged right to be granted free legal assistance, the

Commission again agrees with the German courts that the matter is both

from the factual and legal point of view of such triviality that

despite the applicant's difficulties with the German language the

interests of justice did not require free legal assistance.

In fact at his interrogation of 30 July 1984 the applicant had already

explained why he travelled outside the district of Heilbronn and why

it had allegedly been impossible for him to obtain an authorisation to

do so. He was also in a position to instruct his chosen defence

counsel. It cannot in these circumstances be found that free legal

assistance was necessary in the proceedings in question. It has

further to be noted in this context that according to the applicant's

submissions the trial court then decided that assistance by an

interpreter was necessary at the trial. The applicant will thus have

the opportunity to defend his case in his own language.

An examination by the Commission of the applicant's complaint does not

therefore disclose any appearance of a violation of the rights and

freedoms set out in the Convention and in particular in the above

Article.

It follows that the application is manifestly ill-founded within the

meaning of Article 27 para. 2 (art. 27-2) 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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Y. v. THE FEDERAL REPUBLIC OF GERMANY

Y. v. THE FEDERAL REPUBLIC OF GERMANY

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