AS TO THE ADMISSIBILITY OF
Application No. 12355/86
by Mehmet Serif CAN
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 13 July 1987 the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H. C. KRÜGER, Secretary to the Commission.
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 August 1986
by Mehmet Serif Can against the Federal Republic of Germany and registered
on 25 August 1986 under file N° 12355/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts, as submitted by the applicant, may be summarised as
follows:
The applicant is a Turkish citizen born in 1961 who is at
present living in Aachen. He is represented by Mr. Rainer M. Hofmann,
a lawyer practising in Aachen.
The applicant is a Kurd. On 6 June 1985, coming from Belgium,
he and his family entered the territory of the Federal Republic of
Germany at an uncontrolled border passage in a Belgian taxi. However,
at his arrival in Aachen the applicant was apprehended by the customs
authorities. He immediately declared that he wished to apply for
political asylum.
On 7 August 1985, the District Court (Amtsgericht) of Aachen,
acting at the request of the public prosecutor (Staatsanwaltschaft),
issued a penal order (Strafbefehl) against the applicant for the
offence (Vergehen) of illegal entry (unerlaubte Einreise) under
Section 47 para. 1 (1) of the Aliens' Act (Ausländergesetz). The
applicant was thereby ordered to pay a fine in the amount of DM 100.-
On 13 August 1985, this penal order was served on the
applicant in German, information on the possibility to raise an
objection (Einspruch) being added in Turkish. The applicant, whose
mother tongue is Kurdish, states that he has only a very limited
knowledge of Turkish.
The applicant, acting through his lawyer, filed an objection
on the ground that a prosecution for illegal entry was inadmissible in
the case of persons who seek asylum (cf. Section 47 para. 6 of the
Aliens' Act read in conjunction with Article 31 para. 1 of the Geneva
Convention on the Status of Political Refugees).
The lawyer also requested on behalf of the applicant that he
should be appointed as his official defence counsel (Pflicht-
verteidiger). The reason stated was the complexity of the factual and
legal issues and the fact that the lawyer was unable to communicate
with the applicant without the assistance of an interpreter.
On 26 November 1985, the District Court rejected the latter
request. It observed that the case was not one of compulsory
representation. The interests of justice did not require the
appointment of an official defence counsel as the offence was slight
and did not present any factual or legal difficulties which would make
it impossible for the applicant to defend himself in person.
On 24 January 1986 the Regional Court (Landgericht) of Aachen
rejected an appeal against this decision on the ground that it had
been made by the lawyer and not by the applicant himself. The lawyer
could not act in his own right and therefore his appeal was
inadmissible.
On 9 April 1986 a further appeal specifically made on behalf
of the applicant was also declared inadmissible on the ground that
decisions of a trial court preceding its decision on the merits were
not capable of being separately challenged (cf. Section 305 para. 1 of
the Code of Criminal Procedure).
The applicant's constitutional appeal (Verfassungsbeschwerde)
was declared inadmissible by a three judge committee of the Federal
Constitutional Court (Bundesverfassungsgericht) on 3 June 1986. The
committee held that remedies had not been exhausted in accordance with
Section 90 of the Federal Constitutional Court Act and observed that
the impugned decisions were interim decisions incapable of being
separately challenged before the Federal Constitutional Court. The
problem of appointing an official defence counsel could be raised in
a criminal appeal following the trial court's decision on the main
issue.
The main proceedings in the present case have not yet been
completed. A trial took place before the District Court of Aachen on
17 January 1986. On this occasion the applicant was for the first
time informed in his own language (Kurdish) of the charges raised
against him. Despite the assumption that the case did not involve
difficult legal or factual issues the hearing lasted about two hours.
It was then adjourned sine die.
The proceedings were resumed on 13 February 1987. Although
the applicant had again applied on 20 January 1986 to appoint his
lawyer as an official defence counsel and had urged a decision on
27 November and 3 December 1986 this matter had not been settled before
the hearing. The lawyer appeared and made several requests for
evidence which the court rejected. The lawyer was not present at the
hearing of witnesses (three officers of the customs authority).
In its decision of the same day the District Court found the
applicant guilty of the offence of illegal entry (Section 47
para. 1 (1) of the Aliens Act) and imposed a fine of DM 100.-. It
noted that the applicant had already earlier been in the Federal
Republic and applied for political asylum, but had left after three
years before a decision was taken on this application. After his
illegal entry he had again applied for asylum and this application had
been refused by the Federal Office for the Recognition of Political
Refugees on 29 October 1986. Despite his requests for asylum the
applicant could not claim exemption from punishment under Section 267
of the Criminal Code, Section 47 (6) of the Aliens Act and Art. 31 of
the Geneva Convention. Not every illegal entry could be justified
under these provisions simply because an application for asylum was
made immediately afterwards. In the present case the applicant had
been familiar with the legal situation in the Federal Republic and
there had been no reason for him to enter the territory illegally.
The applicant declared that he intended to appeal against this
judgment in particular on the ground that no official defence counsel
had been appointed. However, a decision on the appeal is still
outstanding.
COMPLAINTS
The applicant now alleges violations of Article 6 para. 3 (a),
(b) and (c) of the Convention.
He claims that, contrary to Article 6 para. 3 (a), he was not
informed of the charges "promptly" and "in a language which he
understands" as on 13 August 1985 the penal order was served on him in
German and only 5 months later, at the trial on 17 January 1986, he
was for the first time informed of the accusations against him in
Kurdish.
As the applicant did not know the charges before this trial,
he allegedly did not have adequate time and facilities for the
preparation of his defence, as required by Article 6 para. 3 (b). He
observes in this context that the case was not as simple as had first
been assumed by the Court.
The applicant further claims that at least at the above trial
it should have become clear to the Court that the granting of free
legal assistance by the appointment of an official defence counsel was
necessary in the interests of justice. The applicant had indicated
that he wished to be represented by a lawyer and it was clear from the
circumstances that he was unable to pay for a lawyer. The fact that
he was actually assisted by a lawyer who was ready to defend him
despite certain doubts arising under the bar rules (Standesrecht) could
not deprive him of his fundamental right under Article 6 para. 3 (c).
The necessity to provide free legal assistance arose from the fact
that there was a possibility of applying the Geneva Convention and the
further fact that the applicant had not been informed of the charges
in a language which he understood. In the parallel case brought
against the applicant's wife even the public prosecutor had applied
for the appointment of an official defence counsel, but his request,
too, had been rejected by the Court.
The applicant finally invokes the Eur. Court of H.R.
judgment of 25 April 1983 in the Pakelli case (Series A No. 64) and
the subsequent decision of the Federal Constitutional Court of 11
October 1985 (NJW 1986, 1425), which held that the finding of a
violation of the Convention by failure to appoint an official defence
counsel does not oblige the trial court to reopen the criminal
proceedings. This, it is argued, means that a complaint lodged with
the Commission after the final conclusion of the criminal proceedings
would not be effective. It must therefore in principle be possible
to raise the above complaints already at the present stage. Only in
this way can payment of the lawyer be ensured in any event, and not
only if the applicant should finally be acquitted.
THE LAW
The applicant alleges violations of his rights under Article 6 para. 3
(a), (b) and (c) (Art. 6-3-a, 6-3-b, 6-3-c) of the Convention in criminal
proceedings taken against him on a charge of illegal entry.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of these provisions as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law.
In the present case the applicant failed to await the outcome
of the criminal appeal proceedings in which he could raise his above
complaints under the applicable rules of the Code of Criminal Procedure.
He has, therefore, not exhausted the remedies available to him under
German law.
Moreover, an examination of the case does not disclose the
existence of any special circumstances which might have absolved the
applicant, according to the generally recognised rules of
international law, from exhausting the domestic remedies at his
disposal. It is true that in its decision of 11 October 1985 the
Federal Constitutional Court denied a necessity to reopen criminal proceedings
after a finding by the European Court of Human Rights that the proceedings in
question involved a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention. However, the conclusion which the applicant wishes to draw from
this decision, namely that German law does not provide for effective remedies
to prevent a violation of the Convention in this respect, is not correct. The
Federal Constitutional Court's decision only rules out the reopening of
criminal proceedings after their conclusion. It does in no way exclude the
possibility that remedies taken before the final conclusion of the criminal
proceedings in question might effectively redress a situation which is alleged
to be contrary to the Convention, in particular as the Convention is part of
the domestic law of the Federal Republic and can be invoked before the criminal
courts. The applicant thus can reasonably be expected to make use of the
remedies suggested in the decisions of the Regional Court of Aachen of 9 April
1986 and of the Federal Constitutional Court of 3 June 1986.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and his
application must in this respect be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For this reason, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
H. C. KRÜGER C. A. NØRGAARD