CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 1987

.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 No. 12355/86                       by Mehmet Serif CAN                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 13 July 1987 the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H. C. KRÜGER, Secretary to the Commission.             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 18 August 1986 by Mehmet Serif Can against the Federal Republic of Germany and registered on 25 August 1986 under file N° 12355/86;           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 facts, as submitted by the applicant, may be summarised as follows:           The applicant is a Turkish citizen born in 1961 who is at present living in Aachen.   He is represented by Mr.   Rainer M. Hofmann, a lawyer practising in Aachen.           The applicant is a Kurd.   On 6 June 1985, coming from Belgium, he and his family entered the territory of the Federal Republic of Germany at an uncontrolled border passage in a Belgian taxi.   However, at his arrival in Aachen the applicant was apprehended by the customs authorities.   He immediately declared that he   wished to apply for political asylum.           On 7 August 1985, the District Court (Amtsgericht) of Aachen, acting at the request of the public prosecutor (Staatsanwaltschaft), issued a penal order (Strafbefehl) against the applicant for the offence (Vergehen) of   illegal entry (unerlaubte Einreise) under Section 47 para. 1 (1) of the Aliens' Act (Ausländergesetz).   The applicant was thereby ordered to pay a fine in the amount of DM 100.-           On 13 August 1985, this penal order was served on the applicant in German, information on the possibility to raise an objection (Einspruch) being added in Turkish.   The applicant, whose mother tongue is Kurdish, states that he has only a very limited knowledge of Turkish.           The applicant, acting through his lawyer, filed an objection on the ground that a prosecution for illegal entry was inadmissible in the case of persons who seek asylum (cf.   Section 47 para. 6 of the Aliens' Act read in conjunction with Article 31 para. 1 of the Geneva Convention on the Status of Political Refugees).           The lawyer also requested on behalf of the applicant that he should be appointed as his official defence counsel (Pflicht- verteidiger).   The reason stated was the complexity of the factual and legal issues and the fact that the lawyer was unable to communicate with the applicant without the assistance of an interpreter.           On 26 November 1985, the District Court rejected the latter request.   It observed that the case was not one of compulsory representation.   The interests of justice did not require the appointment of an official defence counsel as the offence was slight and did not present any factual or legal difficulties which would make it impossible for the applicant to defend himself in person.           On 24 January 1986 the Regional Court (Landgericht) of Aachen rejected an appeal against this decision on the ground that it had been made by the lawyer and not by the applicant himself.   The lawyer could not act in his own right and therefore his appeal was inadmissible.           On 9 April 1986 a further appeal specifically made on behalf of the applicant was also declared inadmissible on the ground that decisions of a trial court preceding its decision on the merits were not capable of being separately challenged (cf.   Section 305 para. 1 of the Code of Criminal Procedure).           The applicant's constitutional appeal (Verfassungsbeschwerde) was declared inadmissible by a three judge committee of the Federal Constitutional Court (Bundesverfassungsgericht) on 3 June 1986.   The committee held that remedies had not been exhausted in accordance with Section 90 of the Federal Constitutional Court Act and observed that the impugned decisions were interim decisions incapable of being separately challenged before the Federal Constitutional Court.   The problem of appointing an official defence counsel could be raised in a criminal appeal following the trial court's decision on the main issue.           The main proceedings in the present case have not yet been completed.   A trial took place before the District Court of Aachen on 17 January 1986.   On this occasion the applicant was for the first time informed in his own language (Kurdish) of the charges raised against him.   Despite the assumption that the case did not involve difficult legal or factual issues the hearing lasted about two hours. It was then adjourned sine die.           The proceedings were resumed on 13 February 1987.   Although the applicant had again applied on 20 January 1986 to appoint his lawyer as an official defence counsel and had urged a decision on 27 November and 3 December 1986 this matter had not been settled before the hearing.   The lawyer appeared and made several requests for evidence which the court rejected.   The lawyer was not present at the hearing of witnesses (three officers of the customs authority).           In its decision of the same day the District Court found the applicant guilty of the offence of illegal entry (Section 47 para. 1 (1) of the Aliens Act) and imposed a fine of DM 100.-.   It noted that the applicant had already earlier been in the Federal Republic and applied for political asylum, but had left after three years before a decision was taken on this application.   After his illegal entry he had again applied for asylum and this application had been refused by the Federal Office for the Recognition of Political Refugees on 29 October 1986.   Despite his requests for asylum the applicant could not claim exemption from punishment under Section 267 of the Criminal Code, Section 47 (6) of the Aliens Act and Art. 31 of the Geneva Convention.   Not every illegal entry could be justified under these provisions simply because an application for asylum was made immediately afterwards.   In the present case the applicant had been familiar with the legal situation in the Federal Republic and there had been no reason for him to enter the territory illegally.           The applicant declared that he intended to appeal against this judgment in particular on the ground that no official defence counsel had been appointed.   However, a decision on the appeal is still outstanding.   COMPLAINTS           The applicant now alleges violations of Article 6 para. 3 (a), (b) and (c) of the Convention.           He claims that, contrary to   Article 6 para. 3 (a), he was not informed of the charges "promptly" and "in a language which he understands" as on 13 August 1985 the penal order was served on him in German and only 5 months later, at the trial on 17 January 1986, he was for the first time informed of the accusations against him in Kurdish.           As the applicant did not know the charges before this trial, he allegedly did not have adequate time and facilities for the preparation of his defence, as required by Article 6 para. 3 (b).   He observes in this context that the case was not as simple as had first been assumed by the Court.           The applicant further claims that at least at the above trial it should have become clear to the Court that the granting of free legal assistance by the appointment of an official defence counsel was necessary in the interests of justice.   The applicant had indicated that he wished to be represented by a lawyer and it was clear from the circumstances that he was unable to pay for a lawyer.   The fact that he was actually assisted by a lawyer who was ready to defend him despite certain doubts arising under the bar rules (Standesrecht) could not deprive him of his fundamental right under Article 6 para. 3 (c). The necessity to provide free legal assistance arose from the fact that there was a possibility of applying the Geneva Convention and the further fact that the applicant had not been informed of the charges in a language which he understood.   In the parallel case brought against the applicant's wife even the public prosecutor had applied for the appointment of an official defence counsel, but his request, too, had been rejected by the Court.           The applicant finally invokes the Eur.   Court of H.R. judgment of 25 April 1983 in the Pakelli case (Series A No. 64) and the subsequent decision of the Federal Constitutional Court of 11 October 1985 (NJW 1986, 1425), which held that the finding of a violation of the Convention by failure to appoint an official defence counsel does not oblige the trial court to reopen the criminal proceedings.   This, it is argued, means that a complaint lodged with the Commission after the final conclusion of the criminal proceedings would not be effective.   It must therefore   in principle be possible to raise the above complaints already at the present stage.   Only in this way can payment of the lawyer be ensured in any event, and not only if the applicant should finally be acquitted.   THE LAW           The applicant alleges violations of his rights under Article 6 para. 3 (a), (b) and (c) (Art. 6-3-a, 6-3-b, 6-3-c) of the Convention in criminal proceedings taken against him on a charge of illegal entry.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case the applicant failed to await the outcome of the criminal appeal proceedings in which he could raise his above complaints under the applicable rules of the Code of Criminal Procedure. He has, therefore, not exhausted the remedies available to him under German law.           Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.   It is true that in its decision of 11 October 1985 the Federal Constitutional Court denied a necessity to reopen criminal proceedings after a finding by the   European Court of Human   Rights that the proceedings in question involved a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.   However, the conclusion which the applicant wishes to draw from this decision, namely that German law does   not provide for effective remedies to prevent a violation of the Convention in this respect, is not correct.   The Federal Constitutional Court's decision only rules out the reopening of criminal proceedings after their conclusion.   It does in no way exclude the possibility that remedies taken before the final conclusion of the criminal proceedings in question might effectively redress a situation which is alleged to be contrary to the Convention, in particular as the Convention is part of the domestic law of the Federal Republic and can be invoked before the criminal courts.   The applicant thus can reasonably be expected to make use of the remedies suggested in the decisions of the Regional Court of Aachen of 9 April 1986 and of the Federal Constitutional Court of 3 June 1986.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) 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