CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 juillet 1968

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   A. Whereas the facts presented by the parties and apparently not in dispute between them may be summarised as follows:   The applicant is a German citizen, born in 1925 and at present detained in prison in Berlin-Tegel.   His present application concerns certain civil proceedings which took place in the Regional Court (Landgericht) of Berlin following his conviction and sentence in 1962.   I. As to the applicant's conviction and sentence   1. on 4th June, 1962, the applicant was convicted by the Regional Court of Berlin on charges of having committed an indecent assault against a child and of having inflicted serious bodily harm upon her. According to the finding of the Court, the crime was committed on 23rd December, 1961, between 14.30 and 16.00 hours. The child suffered such serious injuries that an immediate operation was necessary to save her life.   In his defence before the trial court the applicant stated that he had been drinking alcohol at a public house and that he could not remember what had happened after he had left about 14.00 hours. He also submitted that an unknown person must have taken advantage of the child in his, the applicant's flat.   The Court found these allegations to have been refuted and sentenced the applicant to ten years' penal servitude. His appeal (Revision) was dismissed by the Federal Court (Bundesgerichtshof) as manifestly ill-founded on 23rd October, 1962.   2. On 11th January, 1963, the applicant filed a petition for retrial (Wiederaufnahme des Verfahrens). He referred, inter alia, to the Regional Court's finding that the crime had been committed between 14.30 and 16.00 hours and stated that, between 14.00 and 15.15 hours, he had been in East Berlin. There he had visited his mother's flat and, as she was not at home, he had left a note.   The applicant's above petition for retrial was refused by the Regional Court on 5th March, 1963, on the ground that it did not disclose any new facts or evidence which might be considered as sufficient to upset, or put into doubt, the findings of the trial court on which his conviction was based. His appeal (Beschwerde) against this decision was dismissed by the Court of Appeal (Kammergericht) of Berlin on 17th May, 1963.   3. In his first application (No. 2081/63) which was declared inadmissible by the Commission on 10th December, 1965, under Article 27, paragraphs (2) and (3), of the Convention, the applicant complained of his conviction and sentence and of the above decisions refusing his petition for retrial. The Commission held that, with regard to his conviction an sentence, the applicant had failed to observe the six months' time-limit laid down in Article 26 of the Convention and it further found that his complaints relating to his petition for retrial and the court proceedings concerned were incompatible with the provisions of the Convention.   4. A second petition for retrial lodged by the applicant was rejected by the Regional Court on 19th December, 1966, and, on appeal, by the Court of Appeal on 22nd March, 1967.   II. As to the civil proceedings against the applicant   1. In August 1964, the child, who had been the victim of the above-mentioned indecent assault, filed with the Regional Court a petition for free legal aid in order to claim compensation for the injuries suffered. Her representative referred to the case-file of the criminal proceedings against the applicant and gave "23rd December, 1961, around 10.00 hours" as the time when the assault had been committed.   In pursuance of Article 118a of the Code of Criminal Procedure (Zivilprozessordnung), this petition was communicated to the applicant for any observations which he wished to make in reply. In his submissions of 14th August and 11th September, 1964, he requested the Court to refuse the child's petition or, alternatively, also to grant him legal aid and to appoint Rechtsanwältin X. to represent him. Having learned that Mrs. X. objected to her appointment, the applicant proposed another barrister, Dr. Y. The latter declared himself prepared to accept the brief provided the applicant's petition for free legal aid was granted.   By a decision of 1st April, 1965, the Court granted free legal aid to the child plaintiff and appointed a barrister to represent her. The Court also invited Dr. Y. to state and substantiate the applicant's defence and to offer supporting evidence.   Dr. Y. replied that he had agreed to act as counsel only if the applicant were granted free legal aid. As this had not yet been the case, he was unable to accept any service of process.   The writ was then served on the applicant personally who, in June 1965, denied liability and renewed his petition for free legal aid and for the appointment of Dr. Y.   On 12th July, 1965, this petition was refused by the Regional Court on the ground that the applicant's defence failed to show a "sufficient prospect of success" within the meaning of Article 114, paragraph (1), of the Code of Civil Procedure. This provision states as follows:   "A party who is not in a position to meet the costs of an action without sacrificing the necessary means of support for himself or his family shall, on his application, be granted free legal aid, provided that the proposed claim or defence offers sufficient prospects of success ..."   ("Einer Partei, die ausserstande ist, ohne Beeinträchtigung des für sie und ihre Familie notwendigen Unterhalts die Kosten des Prozesses zu bestreiten, ist auf Antrag das Armenrecht zu bewilligen, wenn die beabsichtigte Rechtsverfolgung oder Rechtsverteidigung eine hinreichende Aussicht auf Erfolg bietet ...")   In its decision, the Regional Court referred to the findings of the criminal proceedings and stated that the submissions made by the applicant in support of his petition for free legal aid did not contain anything which might show that the plaintiff would not succeed in proving the applicant's liability. As to the amount of compensation claimed, it did not appear that the applicant intended to make any observations.   The applicant lodged an appeal (Beschwerde) against this decision and invoked Article 6, paragraph (1), of the Convention and Article 103, paragraph (1), of the Basic Law (Grundgesetz) of the Federal Republic of Germany which states that, in the courts, everyone is entitled to a hearing in accordance with the law ("Vor Gericht hat jedermann Anspruch auf rechtliches Gehör"). He also referred to the indication in the statement of claim that the assault had been committed "around 10.00 hours" and pointed out that this differed from the finding of the criminal judgment that it occurred "between 14.30   and 16.00 hours". He further complained that the Regional Court had failed to examine his alibi.   On 14th September, 1965, the Court of Appeal dismissed the applicant's appeal. It considered the plaintiff's statement that the assault had been committed "around 10.00 hours" as a "patent error" ("offensichtliches Versehen") and observed, with regard to the applicant's alibi, that it had already been considered carefully by courts of two instances in his unsuccessful proceedings for retrial (see I 2 above). The Court of Appeal also quoted the jurisprudence of the Federal Constitutional Court concerning Article 103, paragraph (1), of the Basic Law in connection with the right to free legal aid as defined in Article 114, paragraph (1), of the Code of Civil Procedure. It followed from this jurisprudence that the refusal of legal aid could not be considered to be unconstitutional where, as in the present case, the proposed defence did not offer a sufficient prospect of success.   By letter of 21st September, the applicant lodged a new appeal against the Regional Court's decision of 12th July, 1965, by which his petition for free legal aid has been refused. He referred again to his alibi and submitted an affidavit (Versicherung an Eides Statt) by his mother of 24th August, 1965. This appeal was dismissed by the Court of Appeal on 9th December, 1965, as unfounded. The Court stated that the affidavit could not be regarded as sufficient to upset, or to put into doubt, the detailed findings in the criminal proceedings against the applicant as these findings had been based on the comprehensive evidence which had been before the trial court.   By a letter of 27th December the applicant lodged a third appeal against the decision of the Regional Court of 12th July, 1965. This appeal was rejected by the Court of Appeal on 28th January, 1966, as inadmissible.   2. In the meanwhile, the hearing concerning the plaintiff's claim for damages had taken place before the Regional Court on 30th September, 1965. In these proceedings, Article 78, paragraph (1), of the Code of Civil Procedure applied which states as follows:   "Before the Regional Courts .... the parties must be represented by counsel authorised to act on their behalf; such counsel must be entitled to practise before the court in question (Counsel's proceedings)"   ("Vor den Landgerichten ... müssen die Parteien sich durch einen bei dem Prozessgericht zugelassenen Rechtsanwalt als Bevollmächtigten vertreten lassen [Anwaltsprozess]")   In accordance with this provision, the child plaintiff was represented by counsel at the hearing. The applicant, whose petition for free legal aid had been refused, was present but not represented by counsel and, consequently, he could not address the Court and had to be treated as if he had failed to appear.   Counsel for the plaintiff referred to his written submissions and moved that judgment by default should be given against the defendant and present applicant in accordance with Article 331 of the Code of Civil Procedure. This provision states as follows:   "(1)   Where a plaintiff applies for judgment by default against a defendant who has failed to appear at the hearing, the fact as stated in Court by the plaintiff shall be deemed to have been admitted.   (2)   Insofar as the fact stated by the plaintiff justify his statement of claim, judgment shall be given in accordance with the statement of claim ..."   ("(1) Beantragt der Kläger gegen den im Termin zur mündlichen Verhandlung nicht erschienenen Beklagten das Versäumnisurteil, so ist das tatsächliche mündliche Vorbringen des Klägers als zugestanden anzunehmen.   (2)   Soweit es den Klageantrag rechtfertigt, ist nach dem Klageantrag zu erkennen ....")   When making the above motion, counsel for the plaintiff did not state the exact amount of damages claimed but left its determination to the discretion of the Court.   In accordance with Article 331 of the Code of Civil Procedure, the Court gave a judgment by default on 30th September, 1965, ordering the applicant to pay 12,000 DM to the plaintiff. When fixing the amount of damages, the Court took into account the facts alleged by the plaintiff and the financial situation of both parties. It also had regard to the jurisprudence of the Federal Court (Bundesgerichtshof) in similar cases. The judgment was served on the applicant on 8th November. 1965.   Under Articles 338 and 339 of the Code of Civil Procedure, a party against whom a judgment by default has been given may lodge an objection (Einspruch) within a time-limit of two weeks. In proceedings before the Regional Courts, objections must, in accordance with Article 78 of the Code, be lodged by counsel. Article 342 provides that, where the objection is admissible, the proceedings shall recommence at the stage in which they were before the default occurred.   On 12th November, 1965, the applicant lodged with the District Court (Amtsgericht) of Berlin-Wedding an objection against the Regional Court's above judgment by default. He was aware that his objection had to be filed by counsel but he apparently did not find a barrister who was prepared to act on his behalf. Pointing out that he was destitute, he also made a new petition for free legal aid.   By a letter of 27th December, 1965, from the Presiding Judge of the Regional Court, the applicant was informed that his objection could not be taken into consideration because it had not been filed by counsel.   B. Whereas the arguments of the parties may be summarised as follows:   I. The applicant refers substantially to Article 6 and also to Article 14 of the Convention. He submits that, without the assistance of a lawyer, he was unable properly to defend himself against the child plaintiff's claim for compensation in the civil proceedings before the Regional Court and that, consequently, he was not given a fair hearing in the determination of his alleged civil obligation. He further considers that the Regional Court and the Court of Appeal discriminated against him by granting free legal aid only to the plaintiff.   1. With regard to the main proceedings before the Regional Court which led to the judgment by default of 30th September, 1965, the applicant complains that he was not heard at all. Indeed, in these proceedings, the Court was bound under Articles 78 and 331 of the Code of Civil Procedure to leave his submissions out of consideration and to treat the facts alleged by the plaintiff as being admitted. This situation was not altered by the fact that the defendant and present applicant was present at the hearing, having in his written submissions expressly contested his liability and offered to produce evidence to refute the plaintiff's allegations.   2. In the applicant's opinion, it is irrelevant for the determination of his above complaint which related to the main proceedings that his defence against the plaintiff's claim was in fact considered by the Regional Court, and by the Court of Appeal, in connection with his petition for free legal aid. He states that, under German law, proceedings concerning applications for legal aid are separate from the main proceedings and argues that the summary character of the former, in particular as regards the taking of evidence, excludes any comparison with the latter. The summary character of legal aid proceedings is clear, in particular, from Article 118a, paragraph (1), of the Code of Civil Procedure which provides:   "The Court may require the applicant to establish the probability of his statements of fact. It shall, before granting free legal aid, hear the opposing party unless, for special reasons, this should appear inexpedient. The Court may also make enquiries, so far as this does not entail serious delay, and, in particular, require the production of documents and obtain information from public authorities. Witnesses and experts shall only be heard where the facts, insofar as this is necessary for the decision on the application for free legal aid, cannot otherwise be sufficiently ascertained; they shall not be examined on oath."   ("Das Gericht kann verlangen, dass der Antragsteller seine Angaben glaubhaft macht. Es soll, wenn dies nicht aus besonderen Gründen unzweckmässig erscheint, vor der Bewilligung des Armenrechts den Gegner hören. Es kann auch, soweit dies ohne erhebliche Verzögerung möglich ist, Erhebungen anstellen, insbesondere die Vorlegung von Urkunden anordnen und von Behörden Auskünfte einholen. Die Vernehmung von Zeugen oder Sachverständigen ist nur zulässig, wenn der Sachverhalt, soweit dies zur Entscheidung über das Armenrechtsgesuch erforderlich ist, auf andere Weise nicht hinreichend geklärt werden kann; eine Beeidigung findet nicht statt.")   3. In general, the applicant also points out that, under German law, the civil courts are not bound by findings made in criminal proceedings. He argues that, consequently, his defence against the plaintiff's claim for compensation in the civil proceedings of 1965 should not have been rejected on the ground that his guilt had already been established at his trial in 1962.   The applicant further submits that the provisions of the German Code of Civil Procedure concerning judgments by default should be interpreted in accordance with the requirements of Article 6, paragraph (1),   and Article 14 of the Convention. Such interpretation would exclude a judgment by default where, as in the present case, the defendant's default was due only to his lack of means to pay a barrister's fees.   Finally, the applicant complains that the guarantee of a "public" hearing in Article 6, paragraph (1), of the Convention was not observed in the above civil proceedings against him before the Regional Court.   II. The respondent Government submits that neither Article 6 nor Article 14 of the Convention was violated in the civil proceedings against the applicant.   1. The Government argues generally that, in interpreting these provisions, regard must be had to the legal systems of the Contracting States. Such a comparison shows that both the obligation for parties to be represented by counsel before certain courts and the possibility of proceedings by default in the absence of such representation are a common feature of several countries. Similarly, free legal aid is granted in such cases to parties unable to pay a barrister's fees provided that their case offers a reasonable chance of success. Reference is made in this connection to:   -   Articles 133, paragraph (1), 138, 153, 406, paragraph (4), 76 and 855 et sqq. of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) and to the Dutch Law of 4th July, 1957;   -   Articles 27, 396, 63, paragraph (1), and 73, paragraph (2), of the Austrian Code of Civil Procedure (Zivilprozessordnung);   -   Articles 61, No. 1, 75 and 150 of the Belgian Code of Civil Procedure (Code de procédure civile) and to the Belgian Law of 29th June, 1929.   In the Government's opinion, if follows from the above legal provisions that such procedural rules are considered by more than one Contracting Party to be in harmony with the Convention. Otherwise the states concerned would have made a reservation in accordance with Article 64.   As regards the right to free legal aid in civil proceedings, the Government further refers both to the Commission's jurisprudence according to which this right is not as such guaranteed by the Convention, and also to Article 6, paragraph (3), sub-paragraph (c). It points out that this provision, which recognises expressly a right to free legal aid in criminal proceedings, nevertheless limits this right to cases where "the interests of justice so require". A fortiori a limitation of the right to legal aid in civil proceedings, must be considered compatible with Article 6, even if regarded under the general "fair hearing" clause of paragraph 1.   2. The Government further refers to the concrete circumstances of the present case and submits that, in any event, Article 6, paragraph (1), of the Convention was not violated, the applicant's right to a "fair hearing" in the determination of his civil obligation having been fully observed by the German courts. In accordance with the relevant provisions of German law, his submissions could not be considered in the main proceedings. However, in the proceedings concerning his petition for free legal aid, he was granted a full hearing at two instances.   In this connection, the Government refers to the above provisions of Articles 114 and 118a of the German Code of Civil Procedure setting out the conditions in which legal aid may be granted and regulating the procedure to be followed by the Court in order to ascertain whether these conditions are fulfilled. Reference is further made to the general rule of Article 139, paragraph (1), of the Code of Civil Procedure, which states as follows:   "The President shall endeavour to ensure that the parties state their case fully with respect to all material facts and make all applications appropriate to their case and, in particular, that they complete any inadequate statement of facts and indicate the evidence they propose to adduce. For this purpose he shall, so far as necessary, discuss the subject-matter and the issue with the parties, from the points of view of the facts and the law, and put questions."   ("Der Vorsitzende had dahin zu wirken, dass die Parteien über alle erheblichen Tatsachen sich vollständig erklären und die sachdienlichen Anträge stellen, insbesondere auch ungenügende Angaben der geltend gemachten Tatsachen ergänzen und die Beweismittel bezeichnen. Er hat zu diesem Zwecke, soweit erforderlich, das Sach- und Streitverhältnis mit den Parteien nach der tatsächlichen und der rechtlichen Seite zu erörtern und Fragen zu stellen.")   In the Government's opinion, if follows from these provisions that the poor person's right to a "fair hearing" is fully observed as a result of the thorough examination which has to be undertaken in the proceedings concerning his petition for free legal aid; indeed, the arguments submitted by the present applicant in his defence against the plaintiff's claim for compensation were carefully considered by the courts in these proceedings.   THE LAW   As to Article 6, paragraph (1) (Art. 6-1), of the Convention   Whereas Article 6, paragraph (1) (Art. 6-1), of the Convention provides that, in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing by a tribunal established by law; whereas the applicant submits that, his petition for free legal aid having been refused in the preliminary proceedings, his right to a fair and public hearing was violated in the main proceedings before the Regional Court when the Court determined the question of his liability and his resultant obligation to compensate the victim of the indecent assault of 23rd December, 1961; whereas the Government argues that the applicant's right to a fair and public hearing was fully observed by the competent German courts in the course of the proceedings as a whole;   Whereas the Commission, in examining the applicant's above complaint, has first had regard to its constant jurisprudence according to which the right to free legal aid in civil cases, as opposed to criminal cases, is not as such included among the rights and freedoms guaranteed by the Convention; whereas, in this respect, reference is made to the Commission's decision on the admissibility of Application No. 3011/67 (Collection of Decisions, Vol. 25, pages 70 [73-74]);   Whereas, however, it follows from the text of its above decision that the Commission, when dealing with complaints concerning the refusal of free legal aid in civil proceedings, also considers the general clause of Article 6, paragraph (1) (Art. 6-1), of the Convention in order to determine whether such refusal constituted, in the particular circumstances of the case, a violation of the right of a person concerned to be granted a fair hearing; whereas, indeed, the Commission also regards this further aspect when examining the issue of legal aid in criminal proceedings; and whereas the Commission has previously held that the right to a fair hearing, both in civil and criminal proceedings, contemplates that everyone who is a party to such proceedings shall have a reasonable opportunity of presenting his case to the Court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent; whereas, in this respect, the Commission refers to its decisions on the admissibility of Applications No. 434/58 and 1092/61, Yearbook of the European Convention on Human Rights, Vol. 2, pages 354 (370, 372), and Vol. 5, pages 210 (212), and, further, to its reports, and the decisions of the Committee of Ministers, in the cases of Ofner, Hopfinger, Pataki and Dunshirn;   Whereas accordingly, with regard to the present complaint, the Commission is called upon to consider whether the specific circumstances of the proceedings against the applicant amounted to a denial of his right to a fair hearing within the meaning of Article 6, paragraph (1) (Art. 6-1), of the Convention; whereas, in this connection, it is not the task of the Commission to examine in general whether the relevant provisions of the German Code of Civil Procedure are in conformity with the Convention;   Whereas the question to be determined is solely whether the application of these provisions in the present case violated Article 6, paragraph (1) (Art. 6-1), of the Convention; and whereas the Commission holds that this question cannot properly be determined on the basis of an isolated consideration of the main civil proceedings against the applicant which led to the judgment by default of 20th September, 1965, but that regard must be had to all the relevant proceedings;   Whereas, with respect to these proceedings, the Commission observes that the civil proceedings of which the applicant complains were the sequel to the criminal proceedings against him in which he had been convicted and sentenced; whereas, following this conviction and sentence, the applicant attempted on several occasions to obtain retrial; and whereas he again contested the findings of the criminal courts when applying for free legal aid and in the above civil proceedings against him;   Whereas it is true that the applicant was not heard by the Regional Court in the main civil proceedings on 30th September, 1965, when a judgment by default was given against him; whereas, however, it is clear, both from the decisions rendered by the criminal courts in the proceedings concerning his petitions for retrial and from the decisions of the civil courts regarding his petition for free legal aid, that the arguments submitted by the applicant in the civil proceedings in his defence against the plaintiff's claim for compensation were carefully examined by these courts at two instances and found not to be sufficient to upset, or to put into doubt, the findings of the criminal courts that he had committed the assault in question; whereas, further, as to the amount of damages, the applicant, although invited to do so, did not make any submissions on this point in the proceedings concerning his petition for free legal aid;   Whereas, in conclusion, having regard to the proceedings as a whole, the Commission finds that the applicant was accorded an adequate hearing by the Courts before the civil judgment of 30th September, 1965, was given against him; whereas, in particular, it does not appear that he was placed at such a disadvantage vis-à-vis the infant plaintiff as to have prejudiced him in the effective exercise of his defence against the plaintiff's claim; whereas, therefore, the applicant's right to a fair hearing in the determination of his civil obligation to compensate the victim of his alleged assault was not violated in the proceedings concerned;   Whereas, finally, the Commission has also considered the applicant's further complaint under Article 6, paragraph (1) (Art. 6-1), of the Convention, that he was not heard in public as to the child's claim for compensation;   Whereas, in this respect, the Commission notes that the main proceedings before the Regional Court were public; whereas, in particular, the judgment of 30th September, 1965, was pronounced at a public session of the Court; whereas, in conclusion, the Commission, again having regard to the course of the proceedings as a whole, does not find that the applicant's right to a public hearing was violated by the German courts;   As to Article 14 in conjunction with Article 6, paragraph (1) (Art. 14, 6-1), of the Convention   Whereas the applicant also alleges a violation of Article 14 (Art. 14) of the Convention, complaining that the Regional Court granted free legal aid only to the plaintiff and that consequently he himself, being equally without means to pay a barrister's fees, was not represented by counsel in the main proceedings before the Regional Court;   Whereas, according to Article 14 (Art. 14), the enjoyment of the rights and freedoms set forth in the Convention shall be secured without any discrimination on the ground of property; whereas, in this respect, the Commission has already stated above that the right to free legal aid in civil cases is not as such guaranteed by the Convention; that, nevertheless, the refusal of such aid may be considered under the "fair hearing" clause of Article 6, paragraph (1) (Art. 6-1); but that there was no violation of this clause in the present case; whereas, in particular, it is clear from the decisions of the German courts that the refusal of the applicant's petition for free legal aid was not based on any consideration of property but solely on an appreciation of the prospects of his defence against the plaintiff's claim;   Whereas, therefore, the decisions concerned do not as such violate Article 14 (Art. 14) of the Convention;   Whereas, finally, it is true that, as a result of the decisions refusing his petition for free legal aid on the ground that his defence failed to show a sufficient prospect of success, the applicant, being without means to pay a barrister's fees, was prevented from pleading his case in the main proceedings before the Regional Court, while a person with sufficient means could have done so irrespective of the prospects of his case; whereas, however, the Commission holds that such inequality does not violate the Convention; whereas, indeed, it follows from Article 6 paragraph (3) sub-paragraph (c) (Art. 6-3-c), that even in criminal proceedings, where a right to free legal aid is guaranteed by the Convention, this right is limited to cases "where the interests of justice so require";   Whereas this limitation has also been held by the Commission to apply to its consideration under Article 6, paragraph (1) (Art. 6-1), of the Convention, of complaints concerning the refusal of free legal aid in criminal cases; whereas, consequently, a reasonable limitation of the right to free legal aid in civil cases, which is itself not guaranteed by the Convention, can a fortiori not be regarded as violating the "fair hearing" clause of Article 6, paragraph (1) (Art. 6-1);   Whereas, similarly, such reasonable limitation cannot be considered as being contrary to the provisions of Article 14 (Art. 14); and whereas, in the present case, the limitation of the right to free legal aid under Article 14 of the German Code of Civil Procedure, which led to the above formal inequality, must nevertheless be considered as reasonable;   Whereas, in conclusion, the Commission finds that an examination of the applicant's complaints under Articles 6 and 14 (Art. 6, 14) does not disclose the appearance of a violation of the Convention; whereas it follows that the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Now therefore the Commission declares this application inadmissible.