CEDH · CASELAW;REPORTS;ENG — 5 juillet 1988

.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 }    Application No. 11394/85           Aziz AKDOGAN       against       the FEDERAL REPUBLIC OF GERMANY         REPORT OF THE COMMISSION   (adopted on 5 July 1988)       TABLE OF CONTENTS                                                                 Page   I.       INTRODUCTION         (paras. 1 - 19) ......................................      1           A.       The application                 (paras. 2 - 4) ...............................      1           B.       The proceedings                 (paras. 5 - 14) ..............................      1           C.       The present Report                 (paras. 15 - 19) .............................      2     II.      ESTABLISHMENT OF THE FACTS         (paras. 20 - 37) .....................................      3           A.       The particular circumstances of the case                 (paras. 20 - 25) .............................      3           B.       Relevant domestic law                 (paras. 26 - 37) .............................      4                 1.   Act on Regulatory Offences                    (paras. 26 - 36) ..........................      4                 2.   Road Traffic fines                    (para. 37) ................................      6   III.     SUBMISSIONS OF THE PARTIES         (paras. 38 - 45) .....................................      8           A.       The applicant                 (paras. 38 - 41) .............................      8           B.       The Government                 (paras. 42 - 45) .............................      8   IV.      OPINION OF THE COMMISSION         (paras. 46 - 56) .....................................     10           A.       Point at issue                 (para. 46) ...................................     10           B.       The applicant's status as a "victim"                 (paras. 47 - 48) .............................     10           C.       Applicability of Article 6 para. 3 (e)                 of the Convention (paras. 49 - 52) ...........     10           D.       Compliance with Article 6 para. 3 (e)                 (paras. 53 - 56) .............................     11     APPENDIX I       :   HISTORY OF THE PROCEEDINGS ................     12   APPENDIX II      :   DECISION ON THE ADMISSIBILITY .............     13   I.     INTRODUCTION     1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicant is a Turkish citizen, born in 1940 and living in Heilbronn (Federal Republic of Germany).   He was represented before the Commission by Mr.   N. Wingerter, a lawyer practising in Heilbronn.   3.       The application is directed against the Federal Republic of Germany.   The respondent Government were represented by their Agents, Mrs.   I. Maier, Ministerialdirigentin, succeeded by Mr.   J. Meyer-Ladewig, Ministerialdirigent, both of the Federal Ministry of Justice.   4.       The applicant complains that, in proceedings concerning a regulatory offence (Ordnungswidrigkeit), he was ordered to pay the fee of the interpreter amounting to DM 59.90.   He invokes Article 6 para. 3 (e) of the Convention.     B.       The proceedings   5.       The application was introduced on 27 December 1984 and registered on 15 February 1985.   6.       On 8 May 1985 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to state before 28 June 1985 whether or not, having regard to the judgment of the European Court of 21 February 1984 in the Öztürk case (Eur.   Court H.R., Series A no. 73), they would wish to submit written observations on the admissibility and merits of the present application and, in the affirmative, to submit such observations before 2 August 1985.   7.       The Government replied that they wished to submit observations.   Following an extension of the time-limit their observations of 20 September were received on 24 September 1985. The applicant's reply of 1 October was received on 3 October 1985.   8.       On 12 December 1985 the Commission considered the state of proceedings.   On 5 March 1986 it declared the application admissible.   9.       On 27 March 1986 the text of this decision was communicated to the parties who were invited to submit any additional observations on the merits by 23 May 1986.   10.      No such observations were received within the above time-limit but, in submissions of 4 July which arrived on 10 July 1986, the Government requested the Commission to reject the application under Article 29 of the Convention.   The applicant's reply to the request was dated 11 August and arrived on 13 August 1986.   11.      The Commission considered the parties' submissions on 10 December 1986.   It found no basis for the application of Article 29 of the Convention.   12.      On 11 December 1987 the Commission resumed its examination of the application in the light of the judgment given by the Court in the Lutz case on 25 August 1987 (Eur.   Court H.R., Series A no. 123 - A).   13.      On 5 July 1988 the Commission took their final vote on the case.   14.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. b of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis upon which such a settlement can be reached.     C.       The present Report   15.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   E. BUSUTTIL                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ   16.      The text of this Report was adopted on 5 July 1988 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   18.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   19.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case   20.      On 7 May 1981 the Heilbronn District Administration (Landratsamt) imposed on the applicant a fine (Bussgeld) of DM 75.- for breach of the Road Traffic Regulations (Strassenverkehrsordnung). He had caused a traffic accident while driving his motor vehicle.   On negotiating a left turn he had collided with an oncoming vehicule.   21.      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 decision of 7 May 1981 accordingly became final (rechtskräftig).   22.      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 the interpreter's fee.   23.      The applicant entered an appeal (Erinnerung) against the bill of costs with regard to the interpreter's fee.   The District Court dismissed the appeal on 27 September 1982.   It considered that Article 6 para. 3 (e) of the Convention was not applicable to proceedings relating to regulatory offences since these proceedings did not form part of the criminal law.   24.      On 16 November 1982 the bill of costs was paid by the applicant's legal insurers (ARAG Düsseldorf).   25.      The applicant lodged a constitutional complaint (Verfassungs- beschwerde) 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 complaint 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 complaint.   The Federal Constitutional Court does not apply the guarantees of a fair hearing contained in Article 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 Article 2 para. 1 in conjunction with Article 20 para. 3 of the Basic Law (Grundgesetz) to degrade an accused, who is not sufficiently conversant with the German language, to be the subject of proceedings who cannot be understood.   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 Article 465 para. 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 Article 3 para. 3 of the Basic Law does not include the right to financial compensation for linguistic difficulties.     B.       Relevant domestic law           1. Act on Regulatory Offences   26.      The subject of "regulatory offences" is governed by the Act of 24 May 1968 on Regulatory Offences (Gesetz über Ordnungswidrigkeiten), in its version of 1 January 1975 ("the 1968/1975 Act").   The purpose of this legislation was to remove petty offences from the sphere of the criminal law.   Included in this category were road traffic contraventions.   Commission of such contraventions had given rise to liability to a fine (Geldstrafe) or imprisonment (Haft).   Section 3 (6) of the Introductory Act of 24 May 1968 (Einführungsgesetz zum Gesetz über Ordnungswidrigkeiten) classified them as "Ordnungswidrigkeiten" and henceforth made them punishable only by fines (Geldbussen) not deemed to be criminal by the legislature.           a) General provisions   27.      Section 1 (1) of the 1968/1975 Act defines a "regulatory offence" as an unlawful and reprehensible act, contravening a legal provision which makes offenders liable to a fine.   The fine cannot be less than DM 5 or, as a general rule, more than DM 1,000 (section 17 (1)). The amount of the fine is fixed in each case by reference to the seriousness of the offence, the degree of misconduct attributable to the offender and, save for minor offences, the offender's financial circumstances (section 17 (3)).           b) Prosecuting authorities   28.      "Regulatory offences" are to be dealt with by the administrative authorities designated by law, save insofar as the 1968/1975 Act confers the power of prosecution of such offences on the public prosecutor and the trial and punishment of them on the courts (sections 35 and 36).           c) Procedure in general   29.      Subject to the exceptions laid down in the 1968/1975 Act, the provisions of the ordinary law governing criminal procedure - in particular the Code of Criminal Procedure, the Judicature Act (Gerichts- verfassungsgesetz) and the Juvenile Courts Act (Jugendgerichtsgesetz) - are applicable by analogy to the procedure in respect of "regulatory offences" (section 46 (1)).   The prosecuting authorities have the same rights and duties as the public prosecutor in a criminal matter unless the 1968/1975 Act itself states otherwise (section 46 (2)). Nevertheless, a number of measures permissibile in criminal matters cannot be ordered in respect of "regulatory offences", notably arrest and interim police custody (vorläufige Festnahme) (section 46 (3)).   30.      The prosecution of "regulatory offences" lies within the discretion (pflichtgemässiges Ermessen) of the competent authority, which may terminate the prosecution at any time while the case is pending before it (section 47 (1)).   Once the case has been brought before a court, power to direct a stay of proceedings rests with the court; any such decision requires the agreement of the public prosecutor and is final (section 47 (2)).           d) Administrative decision imposing a fine   31.      Save insofar as the 1968/1975 Act provides otherwise, a "regulatory offence" is punishable by an administrative decision imposing a fine (Bussgeldbescheid; section 65).           The person concerned may lodge an objection within a period which on 1 April 1987 was increased from one week to two weeks (section 67).   Unless they withdraw their decision, the administrative authorities will then forward the file to the public prosecutor, who will submit it to the competent District Court and thereupon assume the function of prosecuting authority (sections 68 and 69).           e) Judicial stage of the procedure   32.      Under section 71, if the District Court finds the objection admissible (section 70) it will, unless the 1968/1975 Act states otherwise, examine the objection in accordance with the provisions applicable to an objection against an order of summary punishment (Strafbefehl): in principle, it will hold a hearing and deliver a judgment which may impose a heavier sentence (Article 411 of the Code of Criminal Procedure).   The person concerned has the option of attending the hearing but is not bound to do so unless the District Court so directs (section 73 (1) and (2)); he may be represented by a lawyer (section 73 (4)).           f) Enforcement of decisions imposing a fine   33.      A decision imposing a fine is enforceable once it has become final (sections 89 and 84).   If, without having established his inability to pay, the person concerned has not paid the fine due in time, the court may, at the request of the administrative authorities or, where the fine was imposed by a court decision, of its own motion, order coercive imprisonment (Erzwingungshaft - section 96 (1)).   The resultant detention does not replace payment of the fine in the manner of an "Ersatzfreiheitsstrafe" under the criminal law, but is intended to compel payment.   The period of detention may not exceed six weeks for one fine and three months for several fines (section 96 (3)). Implementation of the detention order is governed, inter alia, by the Code of Criminal Procedure (section 97).           g) Costs   34.      As far as the costs of the administrative procedure are concerned, the competent authorities apply by analogy certain provisions of the Code of Criminal Procedure (section 105).   35.      Under section 109, the person concerned has to bear the costs of the court proceedings if he withdraws his objection or if the competent court rejects it.           The costs in question are made up of the expenses and fees of the Treasury (Article 464 (a) para. 1, first sentence, of the Code of Criminal Procedure).   These fees and expenses are listed in the Court Costs Act (Gerichtskostengesetz) which in turn refers, inter alia, to the Witnesses and Experts (Expenses) Act (Gesetz über die Entschädigung von Zeugen und Sachverständigen).   Section 17 sub-section 2 of the last-mentioned Act provides that "for the purposes of compensation, interpreters shall be treated as experts".           Interpretation costs (Dolmetscherkosten) are thus included in the costs of judicial proceedings.   However, as far as criminal proceedings - and criminal proceedings alone - are concerned, the German legislature amended the schedule (Kostenverzeichnis) to the Court Costs Act following the Luedicke, Belkacem and Koç judgment of 28 November 1978 (Eur.   Court H.R., Series A no. 29).   According to no. 1904 in this schedule, henceforth no charge is to be made for "the sums due to interpreters and translators engaged in criminal proceedings in order to translate, for an accused who is deaf or dumb or not conversant with the German language, the statements or documents which the accused needs to understand for his defence" (Act of 18 August 1980).   36.      Under the terms of section 109 of the 1968/1975 Act, the question of payment of the costs of the proceedings, including the interpretation costs, only arises once the withdrawal or dismissal of the objection has become final.   The person concerned may never be required to make an advance payment in respect of the costs concerned.           2. Road traffic fines   37.      The Road Traffic Act (Strassenverkehrsgesetz), the Road Traffic Regulations and the Road Traffic Licence and Vehicle Conformity Regulations (Strassenverkehrs-Zulassungs-Ordnung) contain lists of "regulatory offences" punishable by a fine (section 24 of the Road Traffic Act).           Section 24 of the Road Traffic Act provides:           "1.   It shall be a 'regulatory offence' wilfully or         negligently to contravene a provision in a statutory         instrument (Rechtsverordnung) made pursuant to         section 6 (1) or in an order (Anordnung) made pursuant         to such a statutory instrument if the statutory         instrument concerned refers to the present provision ...         in respect of a given offence.   Such reference shall         not be required where the provision of the statutory         instrument was made before 1 January 1969.           2.    A 'regulatory offence' is punishable by a fine."           The Road Traffic Regulations, which were applied in the present case, were contained in one of the statutory instruments issued under section 6 (1) of the Road Traffic Act.   III.   SUBMISSIONS OF THE PARTIES   A.       The applicant           1. Preliminary questions           a) The applicant's status as a "victim"            (Article 25 of the Convention)   38.      The applicant submits that this issue was settled by the Commission's decision on the admissibility of the application.   He further argues that the factual and legal situation in the present case is the same as in the Öztürk case (Eur.   Court H.R., judgment of 21 February 1984, Series A no. 73) and states that he does not claim a decision under Article 50 of the Convention.   39.      The applicant also 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 innerstaatliche Recht nicht geändert") and that the conclusions to be drawn from that judgment are being considered.   The applicant has filed 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").   He submits that the Government are thus causing further applications to the Commission and increasing the work of the Convention organs.           b) The applicability of Article 6 para. 3 (e) of the Convention   40.      The applicant submits that proceedings under the Regulatory Offences Act have to be considered as criminal proceedings with all the guarantees of Article 6 of the Convention, including the right to the free assistance of an interpreter provided for in paragraph 3 (e) of that provision.           2. The alleged violation of Article 6 para. 3 (e)   41.      The applicant submits that the decision of the District Court, by which he was ordered to pay the interpreter's fee, violated Article 6 para. 3 (e) of the Convention.     B.       The Government           1. Preliminary questions           a) The applicant's status as a "victim"            (Article 25 of the Convention)   42.      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 no. 85), dismissed Mr. Öztürk's claim, under Article 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's representative when he introduced the present application on 27 December 1984.   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 above judgment of the Court.   43.      The Government further observe that an application under Article 25 of the Convention is not an actio popularis.   It does not entitle the applicant to seek findings that go beyond the regulation of his own case.   Since the legal issue arising in the present case was decided in the Öztürk case and since the applicant cannot expect reimbursement of the interpretation costs in his case, there is, in the Government's opinion, no cause for complaint and no need for legal protection.    In this connection the Government refer to the work-load faced by the Convention organs and to the length of proceedings before them.   They argue that, for the benefit of the individual, greater weight should be attached to the question of the need for legal protection.   Any application that manifestly has no prospect of success should be rejected.   Since the applicant cannot ultimately succeed, there is no need for legal protection.   In the light of the Öztürk judgment (Article 50) it is also not apparent that the applicant is aggrieved by the costs decision complained of.           b) The applicability of Article 6 para. 3 (e) of the Convention   44.      The Government make no submissions under this heading.           2. The alleged violation of Article 6 para. 3 (e)   45.      The Government make no submissions under this heading.   IV.    OPINION OF THE COMMISSION     A.       Point at issue   46.      The issue to be determined in the present application is whether the obligation imposed on the applicant to pay the interpreter's fee violated Article 6 para. 3 (e) (Art. 6-3-e) of the Convention.     B.       The applicant's status as a "victim"   47.      Throughout the proceedings the Government have argued that the applicant cannot claim to be a "victim" in the sense of Article 25 (Art. 25) of the Convention and that there is no need for legal protection.   48.      The Commission has determined this issue in its decision on the admissibility of the application (see pp. 18f. below).     C.       Applicability of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention   49.      Article 6 para. 3 (e) (Art. 6-3-e) of the Convention provides:           "3.   Everyone charged with a criminal offence has the         following minimum rights:         ...         e. to have the free assistance of an interpreter if he         cannot understand or speak the language used in court."   50.      The Commission notes that the applicant had to answer for a breach of the Road Traffic Regulations (see paras. 20 and 37 above). In German law this was not a criminal offence (Straftat) but a "regulatory offence" ("Ordnungswidrigkeit").   However, this classification is not decisive for the purposes of the Convention.   51.      The Commission here recalls that the issue of the applicability of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention to proceedings concerning "regulatory offences" was determined in the Öztürk case.   In that case the Court held that Mr. Öztürk, who likewise   had to answer for a breach of the Road Traffic Regulations, was "charged with a criminal offence" within the meaning of Article 6 para. 3 (Art. 6-3-e) (Eur.   Court H.R., Öztürk judgment of 21 February 1984, Series A no. 73, p. 21 para. 54).   This view has in the meanwhile been confirmed in the Lutz case (Eur.   Court H.R., Lutz judgment of 25 August 1987, Series A no. 123 - A, p. 22 para. 53).   52.      The Commission therefore finds that Article 6 para. 3 (e) (Art. 6-3-e) of the Convention was applicable in the present case.   D.       Compliance with Article 6 para. 3 (e) (Art. 6-3-e)   53.      The right protected by Article 6 para. 3 (e) (Art. 6-3-e) of the Convention entails, for anyone who cannot speak or understand the language used in court, the right to receive the free assistance of an interpreter, without the payment of the costs thereby incurred being claimed back from him subsequenntly (Eur.   Court H.R., Luedicke, Belkacem and Koç judgment of 28 November 1978, Series A no. 29, p. 19 para. 46).   54.      In the present case such costs were imposed by the District Court's bill of costs of 8 October 1981 (para. 22 above).   55.      It follows that the District Court's bill of costs violated the applicant's right under Article 6 para. 3 (e) (Art. 6-3-e), insofar as he was ordered to pay the fee of the interpreter.   56.      The Commission concludes unanimously that there has been a violation of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention.           Secretary to the Commission                 President of the Commission              (H.C. KRÜGER)                              (C.A. NØRGAARD)   &_APPENDIX I&S     HISTORY OF PROCEEDINGS     Date                             Item   ___________________________________________________________________     27 December 1984                 Introduction of the application   15 February 1985                 Registration of the application     Examination of admissibility     8 May 1985                      Commission's decision to communicate                                 the application to the respondent                                 Government   20 September 1985                Government's observations     1 October 1985                  Applicant's reply   12 December 1985                 Commission considers state of proceedings     5 March 1986                    Decision to declare the application                                 admissible     Examination of the merits     4 July 1986                     Government's request to reject the                                 application under Article 29 of the                                 Convention   14 July 1986                     Commission's deliberations   11 August 1986                   Applicant's observations on                                 Government's request   10 December 1986                 Commission's deliberations   11 December 1987                 Deliberations resumed in the light of                                 Lutz judgment of 25 August 1987     5 July 1988                     Commission's deliberations and                                 final votes     5 July 1988                     Adoption of the Report