CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1992

.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. 19070/91                       by J.B.                       against the Federal Republic of Germany         The European Commission of Human Rights (First Chamber) sitting in private on 1 July 1992, the following members being present:              MM.    F. ERMACORA, Acting President of the First Chamber                  E. BUSUTTIL                  A. S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C. L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. P. PELLONPÄÄ                  B. MARXER                    Mr. M. de SALVIA, Secretary to First Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 26 June 1991 by J.B. against the Federal Republic of Germany and registered on 13 November 1991 under file No. 19070/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     19070/91                          - 2   THE FACTS         The applicant is a German citizen born in 1927 and living in Lindau.   He is represented by Mr. Peter Kragler, a lawyer practising in Munich.         It follows from his statements and the documents submitted that on 19 November 1985, the applicant was indicted together with others of tax evasion.         On 25 March 1986 the applicant's defence counsel, Mr. Kragler, submitted observations in writing of some 133 pages.         On 11 November 1986 the Regional Court (Landgericht) in Augsburg admitted the indictment to the extent that the applicant was accused of continued aiding and abetting to the offence of income tax evasion. Insofar as the applicant had been indicted of continued breach of trust committed together with one E.G, the Court considered that the prosecution had not presented sufficient evidence.   On the contrary it considered that there was circumstantial evidence in support of the allegations made by the defence. Under these circumstances it was considered to be unlikely that the applicant had committed a criminal offence as alleged in the indictment.   The Court likewise denied the prospects of success with regard to a second charge of breach of trust, stating again that there was not sufficient evidence although in this case all possible oral and written evidence had been obtained.   As regards a third count of breach of trust the Court considered that the facts as established did not disclose the alleged violation.   Finally, insofar as the applicant had been accused of having obtained money on the basis of faked contracts, the Court considered that the applicant had in fact rendered services and the payments made in return had therefore been justified and did not constitute bribe money.         To the extent that the proceedings were discontinued the Court ordered that the treasury pay the costs of the proceedings and the necessary expenses incurred by the accused.         The appeal of the public prosecutor (Staatsanwaltschaft) against the refusal by the Regional Court to admit certain parts of the indictment was rejected by the Court of Appeal (Oberlandesgericht) in Munich on 26 April 1989.         On 23 July 1990 the Regional Court (Landgericht) in Augsburg decided that the applicant's necessary expenses in the amount of 2063.97 DM had to be reimbursed with 4% interest as from 18 July 1990. This sum contained lawyer's fees of approximately 500 DM.   The applicant had claimed lawyer's fees in the amount of 58,500 DM.   The Court stated, however, that according to Section 464a (2)   No. 2 of the Code of Criminal Procedure (Strafprozeßordnung) only the necessary expenses of a defendant could be reimbursed.   These expenses comprised fees and expenditures of a lawyer to the extent recognised under Section 91 (2) of the Code of Civil Procedure (Zivilprozeßordnung). According to the jurisprudence of the appellate courts, however, fees which had been agreed upon between the lawyer and his client could not be considered insofar as they exceeded the maximum fees provided for under the law (gesetzliche Höchstgebühren).   Even in extremely difficult and complex criminal cases only the legal fees (gesetzliche Vergütung) could be reimbursed.                                          - 3 -                        19070/91         The Court furthermore refused to acknowledge the totality of the legal fees due by the applicant to his lawyer. It stated that according to the power of attorney signed by the applicant, the lawyer had not only been charged to defend him against all charges mentioned in the indictment but also to represent him in all other civil and criminal proceedings related to the matter.   Therefore the fees in question were not only due for the applicant's defence against the charges which were eventually dropped but also in part related to matters still pending.         The applicant's objection (Erinnerung) against this decision was rejected by the Regional Court on 12 October 1990.         An immediate appeal (sofortige Beschwerde) was rejected by the Munich Court of Appeal on 31 October 1990.         The applicant then lodged a constitutional complaint which was rejected by three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 19 February 1991 as offering no prospects of success.         It is stated in the decision that it was constant practice that only the legal fees of chosen defence counsel be reimbursed in case an indictment is not admitted for trial. This practice was not arbitrary. Furthermore it did not violate the applicant's right to a fair trial as guaranteed by the European Convention on Human Rights as neither the Convention nor the German Constitution provided for reimbursement of costs of chosen defence counsel in the event that an accused is not convicted.   COMPLAINTS         The applicant complaints of the refusal of the German judicial authorities to reimburse the necessary expenses incurred by him on account of his being defended by a counsel in criminal proceedings which however did not result in his conviction.   He submits that the prosecution arbitrarily instituted complex and extensive investigation proceedings against him and thereby obliged him to have recourse to the assistance of an expensive lawyer although eventually it turned out that the charges were unjustified.   He submits that in the sphere of economic crimes such proceedings were more and more often instituted in a negligent manner and were a serious threat to the person concerned in view of the high expenses involved often resulting in important losses and even bankruptcy.   He alleges violations of Articles 5 and 6 of the Convention.   THE LAW         The applicant complains that defence costs allegedly incurred by him in connection with criminal proceedings which were partly discontinued were not fully reimbursed by the treasury.   However, the Commission's case-law Article 6 para. 2 read in conjunction with Article 5 para. 5 (Art. 6-2+5-5) contains no obligation on States to pay compensation to an acquitted person for his detention on remand if the detention was justified under Article 5 para. 1 (c) (Art. 5-1-c) (see No. 5969/72, Dec. 19.12.74, D.R. 2 p. 52); still less can a person against whom proceedings have been discontinued claim that this provision requires the State to accept the costs of his defence (No. 9531/81, Dec. 6.10.82, D.R. 31 p. 213).           19070/91                          - 4 -           The Commission cannot find that the proceedings against the applicant were introduced and maintained arbitrarily nor that the German courts's calculation of the costs to be reimbursed was unlawful or that the courts have disregarded any relevant facts.         The examination of this application does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the Articles invoked by the applicant.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber     Acting President of the First Chamber                 (M. de SALVIA)                         (F. ERMACORA)