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