CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 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. 11311/84                       by Mario FEDELE                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 9 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   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;           - the application introduced on 26 April 1984 by Mario Fedele against the Federal Republic of Germany and registered on 17 December 1984 under file N° 11311/84;           - the Commission's decision of 8 May 1985 to communicate the application to the respondent Government for written observations;           - the Government's observations of 2 December 1985;           - the Government's letter of 30 January 1986;           - the applicant's observations of 18 March 1987;           - the Öztürk judgment of 21 February 1984 (Eur.   Court H.R., Series A no. 73) as confirmed in the Lutz judgment of 25 August 1987 (Eur.   Court H.R., Series A no. 123);           Having deliberated;           Decides as follows:   &_THE FACTS&S             The facts of the case, which are agreed between the parties, may be summarised as follows:           The applicant, an electro-technician by profession, is an Italian citizen born in 1938 and residing in Essen (Federal Republic of Germany).           By an order of 9 August 1983, the Düsseldorf administrative authorities imposed on the applicant a regulatory fine (Geldbusse) of DM 100 for a road traffic offence.   The applicant lodged an objection (Einspruch) against this decision and asked to be assisted by an interpreter at the hearing before the District Court (Amtsgericht) of Düsseldorf.           On 22 September 1983 the applicant was summoned to a hearing on 26 October 1983.   On 14 October 1983 his lawyers requested an adjournment on the ground that he was going to be in Italy from 20 October to 20 November 1983.   This request was granted and a new hearing fixed for 23 November 1983.           At the hearing on 23 November 1983 the applicant failed to appear.   His counsel, two police officers summoned as witnesses and an interpreter were present.   The District Court dismissed the applicant's objection against the regulatory fine order of 9 August 1983.   It stated that he "had failed to appear without sufficient excuse although he had been ordered to appear in person". The interpreter and the witnesses were indemnified in accordance with the applicable provisions.           By letter dated 28 November and received at the Court on 29 November 1983 counsel for the applicant applied for reinstatement. He submitted a medical certificate dated 22 November stating that the applicant was prevented by a feverish infection from attending the hearing.   On 8 December 1983 the applicant was granted reinstatement, at his own expense under Article 473 para 7 of the Code of Criminal Procedure (Strafprozessordnung), and a new hearing was fixed for 21 December 1983.   By a summons served on 12 December the applicant was again ordered to appear in person.           By a letter received at the Court on 16 December 1983 the applicant's counsel again requested an adjournment.   He stated that the applicant had already booked his home leave in Italy and would only be returning after 15 January 1984.   The Court granted the request and fixed a new hearing for 16 January 1984.           At the hearing on 16 January 1984 the applicant appeared, assisted by his counsel.   An interpreter and two witnesses were also present.   The hearing was, however, adjourned as a police officer who had been called as a witness had failed to appear.   The police officer was ordered to pay a coercive fine (Ordnungsstrafe), but this order was later withdrawn on the ground that he had given sufficient excuse for his default.           At the hearing on 16 January a new hearing was fixed for 1 February 1984 and the applicant was again summoned;   he did not object to the new date.           However, by letter dated 27 January 1984 counsel for the applicant once again requested an adjournment;   he stated that his client was going to be in Italy for reasons connected with his work and would not be returning until 15 February 1984.   This letter arrived at the mail office of the Düsseldorf District and Regional Courts on Saturday, 27 January, but did not until Monday, 30 January 1984 come to the attention of the District Court Judge dealing with the case, who on the same day refused to adjourn the hearing.           At the hearing on 1 February 1984 the applicant failed to appear.   His counsel, two police officers as witnesses and an interpreter were present.   The Court again dismissed the applicant's objection against the regulatory fine order of 9 August 1983 and stated that he had "failed to appear without sufficient excuse, although he had been ordered to appear in person".           By letter dated 14 February and received at the Court on 15 February 1984 the applicant's counsel again applied for reinstate- ment.   He submitted that hostile weather conditions had prevented the applicant from travelling from Rome to Essen on 30 January 1984.   This application was on 15 February 1984 refused by the District Court on the ground that it had not been made "within the time allowed, namely, within one week of cessation of the hindrance".   The Court also ordered that the applicant should bear the costs of the proceedings in accordance with Articles 46 and 109 of the Regulatory Offences Act (Gesetz über Ordnungswidrigkeiten) and Article 465 of the Code of Criminal Procedure.           The applicant's appeal (Beschwerde) against this decision was dismissed by the Regional Court (Landgericht) of Düsseldorf on 10 April 1984.   The Regional Court confirmed that the request for reinstatement had been filed out of time.   It further found that "the grounds given also do not justify reinstatement.   The simple assertion that it had not been possible to get from Rome to Düsseldorf between 30 January 1984 and 1 February 1984 for a previously arranged hearing on account of 'hostile weather conditions' is not enough to make a blameless default seem probable.   There is no need to establish elaborately that the submission of a communication from an Italian firm written in the Italian language and dated 6 February 1984 also does not constitute sufficient substantiation of this application, the purport of which is already inappropriate."           The following costs for interpretation were incurred at the hearings before the District Court:   DM 141.10 on 23 November 1983, DM 99.80 on 16 January 1984 and DM 140.10 on 1 February 1984, making a total of DM 381.-.   Payment of this sum was claimed from the applicant in a bill of costs (Kostenfestsetzungsbeschluss) of 8 March 1984.           Counsel for the applicant filed an objection (Erinnerung) against this bill relying on the Öztürk judgment of 21 February 1984 (Series A no. 73) of the European Court of Human Rights.   On 28 August 1984 the District Court dismissed the objection.   It considered that the relevant German legislation had not been annulled by the Öztürk judgment, that it was for the legislator to amend legislation found to be in breach of the Convention, and that, pending such amendment, the domestic courts were not bound by the Öztürk judgment.           The applicant's appeal (Beschwerde) against this decision was on 9 October 1984 dismissed by the Regional Court on basically the same grounds.     &_COMPLAINTS&S             The applicant submits that the bill of costs of 8 March 1984, as confirmed by the District Court and the Regional Court, violated his right under Article 6 para. 3 (e) of the Convention to the free assistance of an interpreter in the regulatory proceedings concerned. He also complains that all the decisions given in his case were notified to him in German.     &_PROCEEDINGS BEFORE THE COMMISSION&S             The application was introduced on 26 April 1984 and registered on 17 December 1984.           On 8 May 1985 the Commission decided to communicate the application to the repondent Government for written observations.           The Government's observations were dated 2 December and arrived on 9 December 1985.           By letter of 20 December 1985 the applicant was invited to submit his reply and to state whether he wished to apply for free legal aid under the Addendum to the Commission's Rules of Procedure.           By letter of 10 January 1986 the applicant refused to reply to the Government's observations on the ground that they were drafted in German.   He also submitted a newspaper article, written in German, and objected to the practice of regulatory fines in Northrhine-Westphalia as described in that article.           Under cover of their letter of 30 January, which arrived on 4 February 1986, the Government submitted an English translation of their observations of 2 December 1985.   They also informed the Commission that the applicant had been reimbursed the interpretation costs for the hearing on 16 January 1984.           The English translation of the Government's observations and a copy of their letter of 30 January 1986 were sent to the applicant on 24 February 1986.   At the same time he was again invited to state whether he wished to apply for legal aid.   In view of the terms used in his letter of 10 January 1986 the applicant's attention was also drawn to the clause concerning abusive applications in Article 27 para. 2 of the Convention.           No reply to this letter was received from the applicant.   By letter of 23 June 1986 his attention was therefore drawn to the possibility that his application might be struck out under Rule 44 para. 1 (b) of the Commission's Rules of Procedure.           Thereupon, by letter of 25 June which arrived on 30 June 1986, the applicant informed the Commission that he had been reimbursed the interpretation costs for the hearing on 16 January 1984.   He insisted that the Government provide him with an Italian translation of their observations and refused to amend the terms of his letter of 10 January 1986.           On 11 October 1986 the Commission considered the state of proceedings.   It noted that the applicant had been reimbursed the interpretation costs for the hearing on 16 January 1984; that he was not represented by counsel and had not applied for legal aid; and that, as to his request to receive the Government's observations in Italian, assistance was being provided by the Commission's Secretariat.           By letter of 20 November 1986 the applicant was informed that the Government, in submitting an English translation of their observations, had acted in accordance with Rule 24 para. 1 of the Commission's Rules of Procedure.   The applicant was free, under Rule 24 para. 3, to continue to address the Commission in Italian.   As an exceptional measure, and in order to facilitate the preparation of his reply to the Government's submissions, a summary of these in Italian was being drafted in the Commission's Secretariat.           A full translation of the Government's observations in Italian was sent to the applicant on 13 February 1987.   His observations in reply were dated 18 March and arrived on 23 March 1987.           A French translation by the Secretariat of the applicant's reply was sent to the Government on 31 March 1987.     &_SUBMISSIONS OF THE PARTIES&S     I.       The Government     1.       Given that the Court Costs Act (Gerichtskostengesetz) has not extended the free provision of interpreting services to regulatory proceedings, the interpreting costs of DM 99.80 incurred at the court hearing on 16 January 1984 were formally correctly assessed by the official responsible for costs assessment.   In the light of the Court's judgment of 21 February 1984 in the Öztürk case the Land of Northrhine-Westphalia has, however, reimbursed the applicant this sum.   2.       Interpreting costs incurred at the court hearings on 23 November 1983 and 1 February 1984 - amounting on the first occasion to a sum of DM 141.10 and on the second to DM 140.10 and thus totalling DM 281.20 - were rightly claimed from the applicant.   His appearance in person having been ordered, he culpably failed to appear at the court hearings in question so that it was not possible for the case to be heard.   Nevertheless, the interpreter summoned on express application by the applicant had to be reimbursed on each occasion.           a) It is true that the applicant subsequently apologised for his failure to appear on 23 November 1983 with the excuse that he had been ill with a feverish influenza infection.   Since, however, the medical certificate by his doctor in Essen had already been issued on 22 November 1983 it would have been possible and reasonable for the applicant at least to have telephoned his counsel in Essen or the registry of the Düsseldorf District Court to say that he was ill - which would have made it possible to put the interpreter off and to avoid costs.           b) The applicant also did not appear at the court hearing on 1 February 1984.   This hearing had been arranged at the hearing on 16 January 1984.   Although initially he had raised no objections to this hearing, he let it be known only two days before the hearing was due to take place that he would be in Italy until mid February and that he was requesting an adjournment.   The letter from his counsel dated Friday, 27 January 1984 was received at the court's incoming mail department only on Saturday, 28 January 1984.   On account of the weekend it could only be placed before the judge for his decision on Monday, 30 January 1984.   The "excuse" that "hostile weather conditions" had prevented the applicant from travelling (by car) from Rome to Düsseldorf was rightly not accepted by the Court.   Consequently, the applicant also has to have the cause of the avoidable costs incurred at this hearing imputed to himself.   3.       Article 6 para. 3 (e) of the Convention merely requires an accused to be given the free assistance of an interpreter for an oral court hearing if the former cannot understand the language used in court. Irrespective of the question whether it is a case of criminal or of regulatory proceedings, it cannot be inferred from this provision that the treasury has to meet the costs of interpreting where the accused or a person involved in regulatory proceedings fails - in a manner for which he is accountable - to appear at the oral hearing even though he knew that an interpreter would be summoned and that costs would thus be incurred.           The costs thus caused - although avoidable - must therefore be borne by the applicant just as the witness reimbursements and other possible costs incurred at the same hearing have to be, and actually were - without objection - borne by him.   4.       The Goverment conclude with regard to the remaining interpretation costs that amounted to DM 281.20, i.e. the costs incurred at the hearings on 23 November 1983 and 1 February 1984, that the application is manifestly ill-founded.     II.      The applicant             The application is well-founded with regard to the remaining interpretation costs, for the reasons already stated.   In particular, snow and ice on the roads prevented the applicant from travelling by car from Italy to Düsseldorf in order to appear at the hearing on 1 February 1984.   The charge and the proceedings against him were absurd, all decisions were notified in German and the police officer called as a witness, who failed to appear on 16 January 1984, was given preferential treatment.   The respondent State should not be permitted to interpret human rights as it sees fit.   THE LAW     1.       The applicant complains of the bill of costs, issued by the District Court of Düsseldorf on 8 March 1984, by which he was ordered to pay interpretation costs for the hearing on 16 January 1984, at which he was present, and for the hearings on 23 November 1983 and 1 February 1984, at which he did not appear.   He invokes Article 6 para. 3 (e) (Art. 6-3-e) of the Convention, which provides that everyone "charged with a criminal offence" shall have the "free assistance of an interpreter" if he cannot understand or speak the language used in Court.   2.       The Commission, having regard to the Öztürk judgment of 21 February 1984 (Eur.   Court H.R., Series A no. 73, p. 21 para. 56) as confirmed in the Lutz judgment of 25 August 1987 (Eur.   Court H.R., Series A no. 123, paras. 50 et seq.), finds that the applicant, in the regulatory proceedings complained of, was a person "charged with a criminal offence", and therefore entitled to the "free assistance" of an interpreter, if he could not understand or speak German.   3.       The applicant received this assistance at the hearing on 16 January 1984, at which he was present.   He was assisted by an interpreter appointed by the Court.   It is true that, by the bill of costs of 8 March 1984, he was subsequently charged with the costs of interpretation at this hearing.   However, following the introduction of the present application and its communication to the respondent Government, the applicant was reimbursed these costs.   To this extent his claim under the Convention, having been satisfied, is not pursued.   4.       It thus remains to be examined whether the bill of costs violated the applicant's rights under Article 6 para. 3 (e) (Art. 6-3-e), insofar as it charged him with the costs of the interpreter at the two hearings at which he did not appear - on 23 November 1983 and 1 February 1984.   5.       Article 6 para. 3 (e) (Art. 6-3-e), by the word "assistance", indicates that it concerns the accused who is present at the hearing.   Only a person who attends the trial - and who, being present, "cannot understand or speak the language used in court" - can be "assisted" by an interpreter.   6.       It follows that the applicant cannot under Article 6 para. 3 (e) (Art. 6-3-e) claim the free "assistance" of an interpreter for the hearings on 23 November 1983 and 1 February 1984, at which he did not appear.   7.       The Commission concludes that the applicant's complaint, concerning the imposition of costs of the interpreter called for those hearings, is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   8.       The applicant finally complains that all decisions given in his case were notified to him in German.   In this respect the Commission recalls that, in the domestic proceedings, the applicant was represented by a German lawyer, and that he was assisted by an interpreter at the hearing on 16 January 1984.   The Commission therefore finds no appearance of a violation of the Convention and concludes that this complaint is also manifestly ill-founded.             For these reasons, the Commission               DECLARES THE APPLICATION INADMISSIBLE.         Secretary to the Commission                President of the Commission               (H.C. KRÜGER)                                (C.A. NØRGAARD)