CEDH · CASELAW;REPORTS;ENG — 7 mars 1991

.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. 13611/88   Klaus CROISSANT   against   THE FEDERAL REPUBLIC OF GERMANY   REPORT OF THE COMMISSION   (adopted on 7 March 1991)   TABLE OF CONTENTS                                                                   Page I.       INTRODUCTION         (paras. 1 - 18) ......................................      1           A.       The application                 (paras. 2 - 5) ...............................      1           B.       The proceedings                 (paras. 6 - 13) ..............................      1           C.       The present Report                 (paras. 14 - 18) .............................      2     II.      ESTABLISHMENT OF THE FACTS         (paras. 19 - 28) .....................................      4           A.       The particular circumstances of the case                 (paras. 19 - 27) .............................      4           B.       Relevant domestic law                 (para. 28) ...................................      6   III.     OPINION OF THE COMMISSION         (paras.   29 - 48) ....................................      8           A.       Complaint declared admissible                 (para. 29) ...................................      8           B.       Points at issue                 (para. 30) ...................................      8           C.       The complaint relating to the costs                 caused by the appointment of the two                 main ex officio counsel                 (paras. 31 - 37) .............................      8                   Conclusion (para. 38) ........................     10           D.       The complaint relating to the costs                 caused by a third ex officio counsel                 appointed without the applicant's consent                 (paras. 39 - 45) .............................     10                   Conclusion (para. 46) ........................     12           E.       Recapitulation                 (paras. 47 - 48) .............................     12           Dissenting Opinion of Messrs.   J.A. Frowein,         A. Weitzel, H.G. Schermers and Mrs.   J. Liddy .........     13           Separate Concurring Opinion of Mr.   S. Trechsel .......     14   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ................     15   APPENDIX II      :   DECISION ON THE ADMISSIBILITY .............     16   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, Klaus Croissant, a German citizen born in 1931, is practising as a lawyer in Berlin.   In the proceedings before the Commission he is represented by Ms.   Sybille M. Meier and Mr.   Klaus Eschen, both lawyers practising in Berlin.   3.       The application is directed against the Federal Republic of Germany.   The German Government are represented by their Agent, Mr.   Jens Meyer-Ladewig, Ministerialdirigent at the Federal Ministry of Justice.   4.       The case concerns the imposition on the applicant, in connection with his conviction of having supported a criminal organisation, of the costs caused by the appointment at his request of two ex officio defence counsel, and the further appointment, without his consent, of a third ex officio defence counsel.   5.       The applicant complains that, although he was qualified for and granted legal aid in the criminal proceedings against him, he was eventually ordered to pay the costs caused by the appointment of ex officio counsel.   He considers that legal aid within the meaning of Article 6 para. 3 (c) of the Convention is granted once and forever. Therefore this provision is violated if, after conviction, the defendant is ordered to pay the costs caused by his defence.           In any event he considers it to be unreasonable and inequitable that the courts also imposed on him the costs caused by a supplementary ex officio counsel who was appointed against the applicant's will for the purpose of securing the trial.   In this respect he invokes Article 6 paras. 1 and 3 (c) of the Convention.     B.       The proceedings   6.       The application was introduced on 3 December 1987 and registered on 15 February 1988.   7.       On 4 July 1988 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 submit observations in writing on the admissibility and merits of the application.           The Government's observations were submitted on 2 December 1988, after an extension of the time-limit.   The applicant submitted his reply on 3 January 1989.   8.       On 9 May 1989 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   9.       The hearing took place on 8 December 1989.   The applicant, who attended the hearing in person, was represented by Mr.   K. Eschen.   The respondent Government were represented by Mr.   J. Meyer-Ladewig, Agent, and Mr.   Udo Heisseler, Presiding Judge at the Stuttgart Regional Court as well as Mr.   David Connor, Federal Ministry of Justice, as Advisers.   10.      Following the hearing the Commission declared the application admissible.   11.      The text of this decision was on 19 March 1990 communicated to the parties who were invited to submit any additional observations or further evidence which they wished to put before the Commission.   12.      Written observations on the merits were submitted by the Government on 3 May 1990.   The applicant's representative, Mr.   Eschen, submitted observations in reply on 29 May 1990.   13.      After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.       The present Report   14.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ              Mrs.   J. LIDDY     15.      The text of this Report was adopted on 7 March 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16.      The purpose of the Report, pursuant to Article 31 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.   17.      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.   18.      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   19.      On 16 February 1979 the applicant was convicted by the Stuttgart Regional Court (Landgericht) of having supported a criminal association.   He was sentenced to two years and six months' imprisonment.   Furthermore the applicant was disqualified to practise as a lawyer for a period of four years.   He was also ordered to bear the costs of the proceedings including his necessary expenses.   His appeal on points of law (Revision) was rejected by the Federal Court (Bundesgerichtshof) on 14 November 1979.   The trial in first instance had started on 9 March 1978 and comprised some 70 days of hearing.   20.      The applicant was mainly defended by two lawyers who first acted as his chosen defence counsel and then, on 2 August 1976, were appointed at his request as his legal aid counsel.   The defence was also represented by three further chosen counsel, who, however, did not conduct the applicant's defence in a continuous manner at the trial.   21.      On 11 January 1978 the Regional Court appointed a third official defence counsel, Mr.   H.   The applicant raised objections against the appointment of Mr.   H., requesting that another lawyer, Mr.   K., be appointed instead.   These objections were rejected by the Court on 1 March 1978.   The Court stated that the appointment of a third official defence counsel was necessary in view of the complexity and difficulty of the matter and the possibly long duration of the trial.   It served to ensure that the applicant was adequately defended throughout the trial.   While it was true that, in principle, the choice of an ex officio counsel had to take into account whether this counsel was apt to establish a relationship of personal confidence with the defendant, the applicant was already defended by several chosen and ex officio counsel whom he fully trusted.   In these circumstances the fact alone that Mr.   H. was an active member of the Social Democratic Party (SPD) did not constitute a reason to fear that he would in any way negatively affect the relationship between the defence counsel altogether and the applicant.   Moreover, it was recommended in legal writing that a lawyer, appointed as ex officio counsel for the safeguarding of the trial, should only intervene in the defence when this was necessary.   On the other hand Mr.   K., whom the applicant preferred as ex officio counsel, was defending an ex-employee of the applicant in other proceedings and it could not be excluded that circumstances would arise in those proceedings which could cause a conflict of interests.   22.      This decision was confirmed by the Stuttgart Court of Appeal (Oberlandesgericht) on 6 March 1978.   This Court likewise considered that the applicant's interests were sufficiently protected in that he was defended by several lawyers of his choice, appointed by him or ex officio, whom he particularly trusted.   It was also advantageous that Mr.   H. was admitted to practice in the district of the Regional Court.   The appointment of a third ex officio counsel was as such found unobjectionable being justified in view of the complexity and difficulty of the case and the unforeseeable length of the proceedings. Mr.   H.'s request to be discharged was unjustified as there was nothing to show that the applicant would not be defended by all his chosen and ex officio counsel, including Mr.   H., in an effective and adequate manner.           The applicant named Mr.   K. as additional chosen counsel, but K. was not admitted as an accused cannot have more than three chosen counsel.   23.      On 27 December 1979 the Treasury of the Stuttgart Regional Court (Gerichtskasse) fixed the costs of the proceedings in the total amount of DM 239,439.30, including DM 209,683.20 for fees and expenses paid to the three official defence counsel.   The applicant lodged an objection (Erinnerung) against this bill (Kostenrechnung) arguing that free legal aid in the sense of Article 6 para. 3 (c) of the Convention was granted once and forever.   Referring to the Commission's case-law (No. 9365/81, Dec. 6.5.82, D.R. 28 p. 229 and No. 9394/81, Dec. 6.5.82, unpublished) the Stuttgart Regional Court rejected the objection on 20 November 1986 as being unfounded.   24.      The applicant lodged an appeal (Beschwerde) to the Stuttgart Court of Appeal.   He maintained his arguments and added that they were particularly relevant in respect of the third defence counsel, Mr.   H, who had been appointed against his will.   The appeal was dismissed on 30 April 1987.   The Court of Appeal confirmed the Regional Court's reasoning and added that the appointment of a third official defence counsel had been necessary to ensure an adequate defence, given the importance and complexity of the case and the foreseeable long duration of the proceedings.   It was objectively justified that the presiding judge, by appointing a third official defence counsel in the interest of a proper and speedy administration of justice, ensured that the trial could be carried through without hindrance.   25.      The applicant's constitutional complaint (Verfassungsbeschwerde) was rejected on 23 June 1987 by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) as offering no prospects of success.   The Court accepted the interpretation of Article 6 para. 3 (c) of the Convention by the Commission and stated that the reason for the obligation of a convicted person to pay the costs of the proceedings is that he caused them by his own behaviour. While the principle of a fair trial required that an indigent accused obtained free legal aid if necessary, it did not exclude that the costs caused thereby be imposed on him later in the case of his conviction.   The law on costs offered other possibilities of taking into account subsisting economic difficulties of the convicted (such as payment facilities, protection against execution).   Finally, the appellate court's finding, that the appointment of a third official defence counsel was necessary in view of the complexity of the matter and the foreseeable long duration of the criminal proceedings, did not disclose any arbitrariness.   26.      The applicant's request for a remission was to no avail. Requests for a respite (Stundung) were likewise rejected by the District Court (Amtsgericht).   A further appeal (weitere Beschwerde) concerning the latest request was however successful in third instance before the Stuttgart Court of Appeal which on 18 August 1989 quashed the decisions appealed from.   The Court pointed out that the possibility of a respite mainly served the purpose of furthering the rehabilitation of the debtor concerned who has already served his sentence.   Therefore the applicant's submission that the denial of a respite, with the possible consequence of having to make an oath of disclosure (Offenbarungseid), would negatively affect his efforts to build up a law practice, had to be taken into account as well as his alleged readiness to allow a member of the Berlin Bar to examine his documents and records with a view to assessing his income.    Also the possibility proposed by the Federal Ministry of Justice that instead of an oath of disclosure the applicant should make a more confidential declaration on oath before a public notary had to be examined.   Even if the granting of a respite would, in practice, have the effect that a great part of the debt would never be paid at all, this did not justify a refusal, as in any event the total sum was foreseeably not recoverable.   Consequently the question as to whether the applicant should be granted a respite in the form of the possibility to pay moderate instalments, and if so in what amount, had to be examined again.   27.      According to the uncontested statements of the Government, until October 1989 the applicant has not effected any payments in relation to the debts resulting from the criminal proceedings in question.   On his own initiative he has been paying 50 DM per month since October 1989.     B.       Relevant domestic law   28.      The following provisions of the German Code of Criminal Procedure (Strafprozessordnung - StPO) are of relevance in the present case:           "Chapter II. Defence           Sec. 137 (Choice of defence counsel)           (I) The accused (Beschuldigter) can be assisted by a         defence counsel at any stage of the proceedings.   The         number of chosen defence counsel may not exceed three.           ...           Sec. 140 (Necessary defence)           (I) The participation of a defence counsel         is necessary           1) if the trial in first instance is held         before the Court of Appeal or the Regional Court;         ...           Sec. 141 (Appointment of defence counsel)           (I) In the cases of Sec. 140 (I) and (II) a defence counsel         has to be appointed for the person charged (Angeschuldigter),         who is not yet represented by counsel, as soon as he is         invited, in accordance with Sec. 210, to submit observations         on the indictment.           (II) Should the conditions of necessary defence arise later,         a defence counsel has to be appointed immediately.           (III) The defence counsel can already be appointed in the         pre-trial proceedings. ...           (IV) The presiding judge of the court dealing with the case         or competent to carry out the trial decides on the         appointment.           Sec. 142 (Choice of defence counsel)           (I) The defence counsel is chosen by the court's presiding         judge if possible among the lawyers admitted to plead in         one of the courts of the district.   The accused (Beschuldigter)         shall be given the opportunity to name a lawyer within a         predetermined time-limit.   The presiding judge appoints the         lawyer named by the accused unless there are important reasons         not to do so.   ...           Sec. 145 (Non-appearance of defence counsel)           (I) If in a case of necessary defence the defence counsel         does not attend a trial hearing, excuses himself for absence         or refuses to defend, the presiding judge shall immediately         appoint another defence counsel for the accused.   The court         may, however, also decide to adjourn the trial.           ...           Book Seven - Chapter 2 - Costs of Proceedings           Sec. 465           (I) The costs of the proceedings have to be borne by the         accused to the extent they were caused by an offence         which he is found to have committed and be guilty of. ... "   III.   OPINION OF THE COMMISSION     A.       Complaint declared admissible   29.      The complaint declared admissible is that, in connection with his conviction, the courts imposed on the applicant both the costs caused by the appointment at his request of two ex officio defence counsel and those caused by the appointment without his consent of a third official counsel.     B.       Points at issue   30.      The Commission is accordingly required to state its opinion on whether there has been a violation of Article 6 para. 1, read in conjunction with para. 3 (c) (Art. 6-1+6-3-c) of the Convention           - in respect of the imposition of the costs of two ex officio counsel who were appointed with the applicant's consent;           - in respect of the imposition of the costs of a third ex officio counsel appointed without his consent.     C.       The complaint relating to the costs caused by the         appointment of the two main ex officio defence counsel.   31.      Article 6 para. 1 and para. 3 (c) (Art. 6-1, 6-3-c) provide:           "1.    In the determination ... of any criminal charge         against him, everyone is entitled to a fair and public         hearing ..."         ...         "3.    Everyone charged with a criminal offence has the         following minimum rights:         ...         (c) to defend himself in person or through legal         assistance of his own choosing or, if he has not sufficient         means to pay for legal assistance, to be given it free when         the interests of justice so require."   32.      The applicant refers to a decision of the Court of Appeal of Düsseldorf (OLG Düss., 21.3.85, publ. 1985, p. 370) which interprets Article 6 para. 3 (c) (Art. 6-3-c) of the Convention to the effect that free legal aid is granted once and for all.   He submits that, unlike the defendant who can afford to pay and therefore choose his defence counsel, the penniless defendant must, if legal aid is granted, accept a defence counsel chosen by the authorities. Consequently he is under all circumstances in a disadvantageous position.   The applicant therefore rejects the argument that a legal aid defendant should, in case of his conviction, have to bear the costs of his defence just as any other convicted person who was assisted by chosen defence counsel provided that his financial situation has improved and allows him to pay.   He also argues that a penniless accused who is defended by an ex officio counsel will be inclined to limit his defence in order to avoid expenses which may later have to be paid by him.   33.      The Government agree with the Commission's interpretation of Article 6 para. 3 (c) (Art. 6-3-c) to date that it is not unfair to require a convicted person who had been defended by an ex officio counsel to pay the costs caused thereby if his/her financial situation allows payment.   They submit that this is also the prevailing opinion in German jurisprudence which was accepted by the Federal Constitutional Court in the present case.   34.      The Commission, in accordance with its decisions on the admissibility of two previous applications raising the same issue (Dec. 6.5.82, No. 9365/81, D.R. 28 p. 229 [230], and No. 9394/81, unpublished), first notes that the European Court of Human Rights held in its judgment of 28 November 1978 in the case of Luedicke, Belkacem and Koç (Series A no. 29 para. 40) that the term 'free' in the context of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention, which provides for free assistance of an interpreter if the defendant cannot speak or understand the language used in court, denotes a once and for all exemption or exoneration.   The Court stressed, however, in this judgment that it was not called on to interpret sub-paragraphs (c) and (d) of Article 6 para. 3 (Art. 6-3-c, 6-4-d) and that it did not intend to establish whether and for which reasons and under what conditions the expenses associated with these provisions may be awarded against or left to be borne by the accused after his conviction (loc. cit., para. 44).   35.      The judgment cited does therefore not imply that the guarantee of free legal assistance must be interpreted in an identical manner to the guarantee of free assistance of an interpreter.   The latter guarantee is phrased in unconditional terms while free legal assistance is only provided for under sub-paragraph (c) if the accused 'has not sufficient means to pay'.   In the Commission's opinion the fact that sub-paragraph (e) of Article 6 para. 3 (Art. 6-3-e) does not contain the qualifying condition 'if he has not sufficient means to pay' purports to avoid that, in the case of the accused being obliged to pay the costs of the proceedings after final conviction, an extra burden be imposed on him for the only reason that he did not understand the language of the court.   36.      The existence of the qualifying condition in sub-paragraph (c) implies on the other hand, that the term 'free' in this context signifies in principle a mere temporary exemption from costs, namely during the trial while after final conviction it is maintained only as long as the accused's insufficiency to pay the costs incurred through legal assistance continues to exist.   The wording 'has not sufficient means to pay' does not, in the Commission's opinion, refer solely to the moment when the trial court decides whether or not free legal assistance should be provided.   It is relevant also at the time when the question is decided whether and to what extent the defendant has to pay the costs of the proceedings.   For these reasons it is, in the   Commission's opinion, not contrary to Article 6 para. 3 (c) (Art. 6-3-c) that the accused has to pay the costs of his legal aid counsel after final conviction unless his means are insufficient.   In other words the imposition of legal aid costs may under particular circumstances only become unreasonable and incompatible with the aim of sub-paragraph (c), where, for example, payment of the costs is enforced regardless of the debtor's financial situation.   37.      As regards the particular circumstances of the present case the Commission first observes that although sub-paragraph (c) does not give the defendant a right to choose legal aid counsel (No. 6946/75, Dec. 6.7.76, D.R. 6 p. 114; No. 8715/79, Dec. 16.7.82, unpublished) the applicant even had the possibility to choose the two lawyers who were eventually appointed, at his request, to act as his ex officio counsel.   Consequently he was not in a disadvantageous position as compared with a defendant who is not only free to choose but also able to pay his defence counsel.   The applicant has not questioned the necessity of being defended by two ex officio counsel in view of the uncontested complexity and importance of the case against him.   Also it has neither been alleged nor is there anything to show that the applicant was not defended in an effective and adequate manner by these two ex officio counsel.   The Commission further notes that undisputedly the German law contains provisions which protect a convicted person against compulsory execution in case he remains unable to pay the costs of the criminal proceedings.   In fact, according to the decision given by the Stuttgart Court of Appeal on 18 August 1989, the applicant will most likely be granted a respite and never have to pay the total amount of costs due by him for the two ex officio counsel appointed with his consent.           Conclusion   38.      The Commission concludes unanimously that there has been no violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention by the imposition on the applicant of the costs caused by the appointment with his consent of two legal aid defence counsel.   D.        The complaint relating to the costs caused by a third ex          officio counsel appointed without the applicant's consent   39.      The applicant argues that a third official defence counsel was appointed against his will for the only purpose of securing the trial, i.e. of making sure that the proceedings could be brought to an end even if the two other ex officio counsel were, for whatever reason, not able to assume his defence throughout the trial.   It was unreasonable and inequitable to impose on him the costs caused by an official defence counsel who was only appointed in the public interest of making sure that the trial could be terminated under all circumstances.   Moreover an additional legal aid counsel appointed without the consent of the defendant will normally abstain from taking an active part in the defence, leaving it to the counsel who enjoys the defendant's confidence, as otherwise he would act contrary to the applicant's right to be defended in an adequate manner and to have a fair trial.   40.      The Government reply that the appointment of a third official defence counsel was in the interest of justice and would have even encountered the applicant's approval had the choice of counsel by the judicial authorities met his expectations.   The third counsel, while appointed to secure the trial, also had to ensure that the applicant's defence was adequate and effective.   Under German law the applicant had to be defended at each hearing of the trial.   In view of the complexity of the case and the expected length of the trial it was therefore justified to appoint a third official defence counsel, who contrary to the applicant's allegation actively participated in the defence and who was easily available as he practised in the court district.   Consequently there was no violation of the right to a fair trial, nor did it violate Article 6 para. 3 (c) (Art. 6-3-c) to impose the costs caused by the defence on the applicant as in any event account was taken of his financial capacity to pay these costs.   41.      The Commission has considered whether the appointment of the third counsel, with the resultant risk of high costs, violated the rights of the applicant under the Convention.   The Convention is intended to guarantee rights that are practical and effective.   This is particularly relevant to defence rights in view of the prominent place held in a democratic society by the right to a fair trial from which flows the right to be defended by an ex officio counsel if the interests of justice so require (Eur.   Court H.R., Artico judgment of 13 May 1980, Series A no. 37, p. 16 para. 33).   Therefore the appointment of a sufficient number of counsel is not in itself incompatible with the Convention.   42.      It is clear from the submissions of the parties that the third official defence counsel was mainly appointed to ensure the proper running of the trial.   It was feared that in view of the expected length of the proceedings the principal defence counsel might not always be available, whereas the applicable procedural law required that the applicant be defended by counsel throughout the trial at each hearing.   Therefore the participation of the third ex officio counsel mainly served the purpose of being prepared for such an eventuality. Nevertheless according to the Government's uncontested statements the third ex officio counsel took an active part in the defence of the applicant who, at that time, did not seem to question the reasonableness of the appointment of a further defence counsel but objected only to the choice by the trial court of the relevant lawyer.   In these circumstances it cannot be found that the appointment of a third ex officio counsel affected the applicant's defence in a negative manner.   43.      The Commission has held above (paras. 32 - 38) that the imposition of costs caused by legal aid counsel on the defendant in case he is convicted is, in principle, compatible with Article 6 para. 3 (c) (Art. 6-3-c) unless his means are insufficient.   In other words such imposition may constitute an unreasonable and disproportionate burden if it is enforced regardless of the financial situation of the person concerned depriving him of means of existence and thus of any real chances to reintegrate into social life.   44.      It follows, however, from the uncontested statements of the respondent Government and the documents submitted that so far the applicant has been paying only 50 DM per month and his request for a respite is still under consideration, the Stuttgart Court of Appeal having stressed in its decision of 18 August 1989 that the possibility of granting a respite would mainly serve the purpose of furthering the rehabilitation of the debtor who has already served his sentence. Therefore the Court of Appeal referred the applicant's request for a respite back to the District Court for review with the instruction to examine again whether, in the interest of the applicant's rehabilitation, he could not be given the possibility of paying moderate instalments (see para. 26 above).   45.      In these circumstances it cannot be found that the imposition on the applicant of the costs for a third ex officio counsel led to a situation which retrospectively had a negative effect on the applicant's rights to a fair trial and an effective defence.           Conclusion   46.      The Commission concludes, by seven votes to four, that there has been no violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention by the imposition on the applicant of the costs caused by the appointment against his will of a third legal aid counsel.   E.       Recapitulation   47.      The Commission concludes unanimously that there has been no violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention by the imposition on the applicant of the costs caused by the appointment with his consent of two legal aid defence counsel;   48.      The Commission concludes, by seven votes to four, that there has been no violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention by the imposition on the applicant of the costs caused by the appointment against his will of a third legal aid counsel.     Secretary to the Commission                 President of the Commission            (H.C. KRÜGER)                              (C.A. NØRGAARD)   Dissenting Opinion of Messrs.   J.A. Frowein, A. Weitzel, H.G. Schermers and Mrs.   J. Liddy             We regret that we cannot follow the majority in their interpretation of Article 6 para. 3 (c):           It is clear from the submissions of the parties that the third official defence counsel was mainly appointed in the public interest to ensure the proper running of the trial.   It was feared that in view of the expected length of the proceedings the principal defence counsel might not always be available, whereas the applicable procedural law required that the applicant be defended by counsel throughout the trial at each hearing.   Therefore the participation of the third ex officio counsel mainly served the purpose of being prepared for such an eventuality.   However, it has not been alleged by the respondent Government that the active intervention of the third ex officio counsel in fact became necessary at any hearing on account of the absence of all other defence counsel chosen by the applicant or appointed at his request.   Consequently the services of this counsel, even if he took an active part in the defence, were, from the applicant's point of view, neither necessary nor required.   That the applicant nevertheless tried to influence the choice of the third ex officio counsel is understandable as he had no confidence in Mr.   H.           The Commission has held that the imposition of costs caused by legal aid counsel on the defendant in case he is convicted is in principle compatible with Article 6 para. 3 (c).   The question nevertheless arises whether the Convention does not contain limits in this respect.   We are of of the opinion that it does.   We interpret the guarantee in Article 6 para. 3 (c) as primarily protecting the accused in the trial.   However, we also find a certain protection in the Article as far as financial consequences are concerned.   Financial consequences of the kind in question in the present case can only be considered as compatible with Article 6 para. 3 (c) where they are reasonably related and proportionate to the purposes of the provision, namely to ensure an effective defence even to the indigent defendant. Such a relationship cannot be established where a substitute defence counsel, appointed against the will of the accused, was not in fact necessary for the defence.   In such a case the subsequent imposition of the costs on the former accused is incompatible with the aims and purposes of Article 6 para. 3 (c) because no justifying link can be established between the financial obligation and the previous necessity during the trial to ensure an effective defence.           In such circumstances the right to a fair trial under Article 6 para. 1 may also be affected by the decision to appoint the substitute counsel.   An accused may conceivably have to take decisions about his defence merely to limit the costs he might have to bear. However, the applicant has not in fact alleged that this was the case. He argues that his right to a fair trial would have been breached had the third counsel acted against the line of defence preferred by his chosen defence counsel.   This situation, however, did not arise.   The   Commisssion therefore finds that the applicant's right to a fair trial has not been affected because of any special consequences generated by the appointment of the third counsel.           This leaves the question whether the violation of Article 6 para. 3 (c) should also be considered to be a violation of Article 6 para. 1, because Article 6 para. 3 (c) is, according to para. 1 first sentence, one of the minimum rights for guaranteeing a fair trial. However, in the special circumstances of the present case, we do not find that this has been established.   The violation of Article 6 para. 3 (c) here lies in a measure which does not concern the specific aim of the rule enshrined in that general provision.   It is not the guarantee of an effective defence but the rule circumscribing the limit of financial burdens ensuing from that guarantee which has been violated.           We have therefore voted for the violation of Article 6 para. 3 (c).     Separate Concurring Opinion of Mr.   S. Trechsel           While being in agreement with the majority of the Commission in saying that the imposition of costs caused by the third ex officio counsel who was appointed without the applicant's consent does not constitute a violation of Article 6 para. 3 (c) of the Convention, I base my opinion on a different reasoning.           In my view, paragraph 3 of Article 6 must be seen, as the word "notamment" in the French text indicates, as a lex specialis with regard to paragraph 1 of the same Article, insofar as it enshrines the right to a fair trial.   This is also the approach taken by the Court (see, e.g., the Bönisch judgment of 6 May 1985, Series A no. 92, pp. 14-15 para. 29, and the Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14 para. 29).   It follows that any problem arising under Article 6 para. 3 (a) - (e) could only be in violation of one of those guarantees if and insofar as it affects the fairness of the proceedings in question.           In the present case, however, it is established that the right to a fair trial was not affected.   There is no indication permitting the assumption that due to the threat of costs the applicant took any decisions jeopardising his effective defence.   In particular, he was not prevented from choosing two counsel in whom he had confidence.           I do not exclude that, as a general principle, the imposition of costs caused by the nomination of an ex officio counsel against the will of the accused might have an effect on the fairness of the trial.   This might be the case, for example, where the accused disposes of funds permitting the payment of only one counsel.   If the appointment of an ex officio counsel against the will of the accused binds those funds, the right of the accused to his own chosen legal assistance may in fact be impaired.           In the present case, however, only the financial burden imposed upon the applicant after the proceedings is at issue.   It is for this reason that I have come to the conclusion that Article 6 para. 3 (c) was not violated in the present case.   APPENDIX I     HISTORY OF PROCEEDINGS     Date                             Item   ______________________________________________________________________     3 December 1987                  Introduction of the application   15 February 1988                 Registration of the application   Examination of Admissibility   4 July 1988                      Commission's decision to invite                                 the Government to submit                                 observations on the                                 admissibility and merits of the                                 application   2 December 1988               &#xa0