CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mars 1986

.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 }                          AS TO THE ADMISSIBILITY OF                           Application N° 11394/85                             by Aziz AKDOGAN                 against the Federal Republic of Germany           The European Commission of Human Rights sitting in private on 5 March 1986, the following members being present:                     MM   C.A. NØRGAARD, President                       G. SPERDUTI                       J.A. FROWEIN                       G. JÖRUNDSSON                       S. TRECHSEL                       B. KIERNAN                       A.S. GÖZÜBÜYÜK                       A. WEITZEL                       J.C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                       G. BATLINER                   Mrs G.H. THUNE                   Sir Basil HALL             Mr H.C. KRÜGER, Secretary to the Commission           Having regard to:   - Art 25 of the Convention for the Protection of Human Rights and   Fundamental Freedoms;   - the application introduced on 27 December 1984 by Aziz AKDOGAN   against the Federal Republic of Germany and registered on   15 February 1985 under file N° 11394/85;   - the judgments given by the European Court of Human Rights in the   Öztürk case on 21 February 1984 (merits - Series A N° 73) and   23 October 1984 (Art 50 - Series A N° 85);   - the Rapporteur's first report, under Rule 40 of the Commission's   Rules of Procedure, of 29 April 1985;   - the Commission's decision of 8 May 1985 to communicate the   application to the respondent Government under Rule 42 (2)(b);   - the Government's observations of 20 September 1985;   - the applicant's reply of 1 October 1985;   - the Rapporteur's second report of 13 November 1985;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as submittecd by the parties may be summarised as follows:           The applicant is a Turkish citizen, born in 1940 and residing in Heilbronn (Federal Republic of Germany).   In the proceedings before the Commission he is represented by Mr N. Wingerter, a lawyer practising in Heilbronn.           On 7 May 1981 the Heilbronn District Administration (Landratsamt) imposed on the applicant a fine (Bussgeld) of DM 75.- for having caused a traffic accident while driving his motor vehicle.           The applicant lodged an objection (Einspruch) against this decision.           At the hearing before the District Court (Amtsgericht) of Heilbronn on 7 October 1981 an interpreter was also present.   After the three witnesses summoned had given their evidence the applicant withdrew his objection.   The order of 7 May 1981 accordingly became final (rechtskräftig).           The District Court directed that the applicant should bear the court costs and his own expenses.   On 8 October 1981 the District Court Cashier's Office fixed the amount to be paid by the applicant, of which DM 59.90 represented interpreter's fees.           The applicant entered an appeal (Erinnerung) against the bill of costs with regard to the interpreter's fees.           The District Court dismissed the appeal on 27 September 1982. It considered that Art 6 (3)(e) of the Convention was not applicable to proceedings relating to regulatory offences (Ordnungswidrigkeiten). These proceedings did not form part of the criminal law within the meaning of Art 6 (3)(e) of the Convention.           On 16 November 1982 the bill of costs was paid by the applicant's legal insurers (ARAG Düsseldorf).           The applicant lodged a constitutional appeal (Verfassungsbeschwerde) against the District Court's decision of 27 September 1982.           On 25 June 1984 a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) refused to accept the appeal for decision on the ground that it did not offer a sufficient prospect of success.   This decision, which was notified to the applicant's lawyer on 9 July 1984, may be summarised as follows:   An alleged violation of the Convention cannot be raised in a constitutional appeal.   The Federal Constitutional Court does not apply the guarantees of a fair hearing (Grundgesetz) in Art 6 of the Convention.   But it would be contrary to the right to a fair trial based on the rule of law as guaranteed by Art 2 (1) in conjunction with Art 20 (3) of the Basic Law to degrade an accused, who is not sufficiently conversant with the German language, to an incomprehensible subject of the proceedings.   By the appointment of an interpreter, the accused must be enabled to understand the essential steps of the proceedings concerning him and to make himself understood. The Court further stated that the obligation of a convicted person under Art 465 (1), first sentence, of the Code of Criminal Procedure (Strafprozessordnung) to bear the costs of the proceedings is compatible with the Basic Law. It also observed that regulatory law differs in essential points from the general criminal law. The central sphere of criminal law comprises all important offences.   The sphere of regulatory offences comprises violations of the law which, according to the general concepts of society, were not deemed (criminally) punishable (strafwürdig).   It is the legislature's task to draw the exact border line with binding effect and in accordance with the constitutional order.   The legislature's decision and the relevant procedural regulations are only to a certain extent subject to the control of the Federal Constitutional Court.   The interpretation and application of ordinary law - the provisions concerning procedural costs and expenses - lies within the competence of the ordinary courts and cannot be examined by the Federal Constitutional Court.   This Court is not called upon to decide on the question which of two interpretations, which are possible under ordinary law, should be given preference or whether any other interpretation appears possible.   The Federal Constitutional Court decides solely on alleged violations of specific constitutional law, as for instance the prohibition of arbitrariness. But the specific principle of equality laid down in Art 3 (3) of the Basic Law does not include the right to financial compensation as a result of linguistic difficulties.     COMPLAINTS           The applicant complains that he was wrongly ordered to pay the interpretation costs.   He refers to the judgment of the European Court of Human Rights of 21 February 1984 in the Öztürk case (Series A N° 73) and stresses that proceedings under the Regulatory Offences Act have to be considered as criminal proceedings with all the guarantees of Art 6 of the Convention, including the right to the free assistance of an interpreter provided for in para 3, sub-para e of that provision.   SUBMISSIONS OF THE PARTIES           The Government observe that the interpreter's fees were not paid by the applicant himself but by his legal insurers.   The European Court of Human Rights, in its judgment of 23 October 1984 in the Öztürk case (Series A N° 85), dismissed Mr Öztürk's claim, under Art 50 of the Convention, to reimbursement of the interpretation fees on the ground that these fees were not borne by Mr Öztürk himself but by his insurance company.   This judgment was known to the applicant when he introduced the present application on 27 December 1984 as he was represented by Rechtsanwalt Wingerter who also represented Mr Öztürk.           The Government submit that cost payment is the only issue involved in the present application and that the applicant cannot succeed on this issue by virtue of the Court's above judgment.           They request the Commission to declare the application inadmissible on the ground that the applicant is not a victim within the meaning of Art 25 of the Convention or, alternatively, on the ground of manifest ill-foundedness.           The applicant submits that the factual and legal situation in the present case is the same as in the Öztürk case.   He denies having had knowledge of the Court's judgment of 23 October 1984 in the Öztürk case, as alleged by the Government, and argues that not only costs but human rights are at issue.           The applicant further refers to a circular letter of the Federal Ministry of Justice to the Ministers of Justice of the Länder (Landesjustizverwaltungen), dated 8 June 1984, in which the Ministry expressed the view that the Court's judgment on the merits of 21 February 1984 in the Öztürk case "has not modified domestic law" ("das innerstaaatliche Recht nicht geändert") and that the conclusions to be drawn from that judgment are being considered.   The applicant has submitted copies of this letter and of a further letter of 24 September 1985, in which the Ministry stated that "the situation remains unchanged" ("der Sachstand unverändert ist").   THE LAW           The Commission has examined:     1.     whether the applicant may claim to be a "victim" in the sense         of Art 25 (Art. 25) of the Convention and, if so,     2.     whether the application is manifestly ill-founded within the         meaning of Art 27 (2) (Art. 27-2) of the Convention.           Under Art 25 (1) (Art. 25-1), first sentence, the Commission may receive applications from individuals who claim to be victims of violations of the Convention.   The Commission finds that the applicant is a "victim" in the sense that he was both affected and aggrieved by the decision of the District Court ordering him to pay, as part of the costs of the proceedings against him, the fees of the interpreter. This finding is not altered by the fact that payment was eventually made by the applicant's insurance.   As rightly pointed out by counsel, the situation was analogous in the Öztürk case.           The Commission has further examined whether the applicant is nevertheless precluded from bringing the present application under Art 25 (Art. 25) on the ground that he has no valid legal interest in these proceedings.   Such a situation could, for instance, arise if an application lacks any practical purpose - cf N°s 7289/75 and 7349/76, Dec 14.7.77, DR 9, pp 57, 73.           The Commission notes that, in the present case, the legal issue - the applicability of Art 6 (3)(e) (Art. 6-3-e) of the Convention in proceedings concerning regulatory offences - is the same as in the Öztürk case.   It also observes that the Federal Ministry of Justice, in its letter of 8 June 1984 to the Land Administrations of Justice, expressed the view that the Court's judgment in the Öztürk case "has not modified domestic law" and further stated that the conclusions to be drawn from that judgment are being considered.   Moreover, in a letter of 24 September 1985, the Ministry declared that "the situation remains unchanged" ("der Sachstand unverändert ist").           In these circumstances the Commission cannot find that, at the present stage, the applicant has no legal interest to have his complaint under Art 25 (Art. 25) of the Convention determined.           Having regard to the Court's interpretation of Art 6 (3)(e) (Art. 6-3-e) in the Öztürk case the Commission also cannot find that the present applicant's complaint under this provision is manifestly ill-founded within the meaning of Art 27 (2) (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE.   Secretary to the Commission            President of the Commission         (H.C. KRÜGER)                             (C.A. NØRGAARD)