PARTLY DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

1.      I am of the view that the State has the power to transfer certain acts from the criminal sphere to the administrative sphere. It is nevertheless necessary that in the event of dispute by the person concerned, the case should go before a court.

2.      Notwithstanding this, in the instant case Mr. Öztürk withdrew his objection and submitted to the "regulatory" fine (see paragraph 13 of the judgment).

The abandonment of the objection lodged and the submission to the "regulatory" fine remove the matter from the ambit of Article 6 (art. 6) and for this reason I reach the conclusion that there was no breach of Article 6 § 3 (e) (art. 6-3-e) of the Convention.

DISSENTING .OPINION OF JUDGE BERNHARDT

The present case, although of minor importance in itself, raises basic questions on the correct interpretation and application of the European Convention on Human Rights.  Since I do not share the opinion of the majority of the Court expressed in the present judgment, I feel obliged to explain my views in this dissenting opinion.

It is now settled case-law of the Court that three criteria are or can be of importance if the question arises as to whether a person is "charged with a criminal offence" in the sense of Article 6 § 3 (art. 6-3) of the Convention: the qualification of an act or omission in the legal system of the State concerned, "the nature of the offence" and "the nature and degree of severity of the penalty" (cf. § 50 of the present judgment following the reasoning in the Engel case).  I agree with this starting point but I come to different conclusions when applying and evaluating these criteria.

(1)  It is beyond dispute that the Regulatory Offences Act of 1968/1975 effected a decriminalisation of various petty offences by taking them out of the criminal code and by creating a system under which they were made punishable by fines imposed by administrative authorities.  The administrative decision is final only if the person concerned does not apply to a court; the absolute exclusion of a court decision would be incompatible with the German constitutional system.

Decriminalisation of this kind involves basic assumptions on the proper field of criminal law as well as a good number of practical aspects.  One of the basic aims is the improvement of the position of the individual by the elimination of any moral judgment and the drawbacks customarily connected with criminal proceedings.  At the same time the criminal courts are no longer overburdened with the handling of a great number - now millions - of minor offences; this is in the interest of the State and society and the effectiveness of the judicial system.

The practical implications and consequences of the new system are described in the present judgment; they need not be repeated here in detail.  It is the administrative authority which imposes the fine; only if the offender lodges an appeal, do the courts give the final decision; the courts can cancel the fine, they can impose a lower or - under certain conditions - a higher fine.  It is the ordinary criminal court that has jurisdiction (if the offender lodges an appeal) in these petty-offence cases, and they apply by analogy a great part of the Code of Criminal Procedure; this has obviously been provided for practical reasons since no other courts are more competent for judging on the proper sanctions for contraventions.  In genuine criminal cases, these same courts can impose sentences of imprisonment, whereas they cannot do this under the Regulatory Offences Act; coercive imprisonment is only possible if the offender neither pays the fine nor establishes his insolvency.

It has never been contested that this system really intends to differentiate between criminal matters and charges, on the one side, and administrative contraventions, on the other.  The German system is in conformity with modern trends in a good number of countries; decriminalisation in its various aspects is also one of the topics of discussion in the Council of Europe.

(2)  I agree with the present judgment and the settled case-law of this Court that the qualification of certain notions and procedures under national law cannot be the final word.  The autonomy of the Convention and its provisions exclude any unilateral qualification which cannot be reviewed.  But this does not mean that the national qualification is without any importance.  We are here concerned with the difficult and precarious task of drawing the borderline between the qualification by the national legal system and the national margin of appreciation, on the one hand, and the autonomy of the Convention provisions, on the other.

In this connection, it must first be said that the fear that "decriminalisation" in the sense here under discussion could lead to the inapplicability of Article 6 (art. 6) of the Convention in nearly all cases now falling under this provision, is completely unfounded. The sole question is whether certain minor offences can be removed from the proper field of criminal law and criminal charges, and this only subject to the ultimate supervision of the Convention organs.

Also, it cannot be decisive that certain acts or omissions have previously been considered "criminal", especially at the time when the Convention was drafted and came into force.  For good reasons the Court has in many cases accepted and practised an evolutive interpretation of the Convention, taking into account developments in society and in public opinion.  In the Dudgeon case, the Court held that certain sexual behaviour, formerly punishable under the criminal law in all States, should no longer be treated as criminal and punishable in a given social environment.  Social developments and evolving considerations of public policy must be taken into account also in other fields of similar relevance.  The Court and the Commission must take due notice of such developments.

Finally, nor can it be decisive that certain acts or omissions are still considered in some States to be criminal, in others not.  It is the essence of the "margin of appreciation" and the limited right of unilateral qualification possessed by the States that there exist differences between them which are relevant also for the application of the Convention.

Thus, the real problem in my opinion is whether the "decriminalisation" here under consideration is a legitimate exercise of national determination and whether it is in conformity with the object and purpose of Article 6 (art. 6) of the Convention.  My answer is in the affirmative.  The reasons for removing some minor offences from the field of criminal law, and for providing special sanctions and procedures for them, can hardly be considered unfounded or disguised.  And can it really be said that the object and purpose of Article 6 (art. 6) of the Convention require the same guarantees (including the free assistance of an interpreter) for small traffic offences and similar petty offences, guarantees which are absolutely necessary in genuine criminal cases?  I do not think so.

For these reasons, "the nature of the offence" here in question - the second criterion for the existence of a criminal charge - does not disqualify or supersede the national determination, and it does not justify the conclusion that Article 6 § 3 (e) (art. 6-3-e) of the Convention is applicable and violated.

(3)  There can be no doubt that "the degree of severity of the penalty" was minimal in the present case, and it does not detract from the foregoing conclusions.

[*]  Note by the registry: In the version of the Rules applicable when proceedings were instituted.  A revised version of the Rules of Court entered into force on 1 January 1983 , but only in respect of cases referred to the Court after that date.