CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 octobre 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 }  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)