AS TO THE ADMISSIBILITY OF
Application No. 13611/88
by Claus CROISSANT
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 8 December 1989, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy 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 3 December 1987
by Klaus Croissant against the Federal Republic of Germany and
registered on 15 February 1988 under file No. 13611/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to :
- the Commission's decision of 4 July 1988 to bring
the application to the notice of the respondent Government
and invite them to submit written observations on the
admissibility and merits of the complaint that the
applicant has to bear the costs caused by the appointment
against his will of a third official defence counsel;
- the observations submitted by the respondent Government on
2 December 1988 and the observations in reply submitted
by the applicant on 30 January 1989;
- the parties' oral submissions at the hearing of
8 December 1989;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1931 and living in
Berlin where he practises as a lawyer. He is represented by Mrs.
Sybille M. Meier and Mrs. Angelika Grotehenne, both practising as
lawyers in Berlin.
The facts, not in dispute between the parties, may be
summarised as follows:
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.
At his trial the applicant was defended by two chosen
defence counsel and two official defence counsel who had been
appointed at his request. In addition, the Regional Court appointed
a third official defence counsel, Mr. H. The applicant raised
objections against the latter appointment, 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 possible long duration
of the trial. It served to ensure that the applicant was adequately
defended throughout the trial. This decision was confirmed by the
Stuttgart Court of Appeal (Oberlandesgericht) on 6 March 1978.
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.
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.
The applicant's constitutional appeal was rejected on 23 June 1987
by a group of three judges of the Federal Constitutional Court (Bundes-
verfassungsgericht) as offering no prospects of success. The decision
refers to the interpretation of Article 6 para. 3 (c) of the
Convention by the Commission as being in no way arbitrary. It points
out 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 requires that an
indigent accused obtains free legal aid if necessary, it does not
exclude that the costs caused thereby be imposed on him later in the
case of his conviction. The law on costs offers 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, does not disclose any arbitrariness.
The applicant's request for a remission was to no avail.
Requests for a respite (Stundung) were likewise rejected. An appeal
(Beschwerde) concerning the latest request was successful in third
instance before the Stuttgart Court of Appeal which on 18 August 1989
quashed the decisions appealed from and sent the case back to the
District Court for re-examination.
COMPLAINTS
The applicant requests the Commission to reconsider the
question of whether free legal aid in the sense of Article 6 para. 3 (c)
of the Convention means free once and for all. He refers to a
decision of 23 March 1985 (published in NStZ 1985 p. 371) in which the
Düsseldorf Court of Appeal held that free legal aid in the sense of
Article 6 para. 3 (c) excludes imposing its costs on the accused in
case of his conviction.
A further and particularly serious violation of Article 6
paras. 1 and 3 (c) arises in the applicant's opinion from the
fact that he is required to bear the costs of a third official defence
counsel who was appointed against the applicant's will for the sole
purpose of ensuring that the trial could be carried through even if
the chosen official defence counsel discontinued to defend the accused
for one reason or another. A "substitute official defence counsel"
(Ersatzverteidiger) was not provided for in the legal aid system. The
appointment of a "substitute" defence counsel only served public
interests and therefore the costs caused thereby had to be borne by
the treasury. The applicant points out that the measure turned out
to be unnecessary as the two official defence counsel whom he had
accepted attended the trial throughout the 73 days of hearings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 December 1987 and
registered on 15 February 1988.
On 4 July 1988 the Commission decided to invite the respondent
Government to submit observations on the admissibility and merits of
the application and to limit their observations to the complaint under
Article 6 para. 3 (c) of the Convention that the applicant has to bear
the costs caused by the appointment against his will of a third
official defence counsel. The Commission also invited the parties to
comment on this complaint in the light of Article 1 of Protocol No. 1
to the Convention.
The Government's observations were received by a letter dated
2 December 1988 and the applicant's observations in reply were dated
30 January 1989.
On 9 May 1989 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application. At the
hearing which was held on 8 December 1989 the parties were represented
as follows:
The Government
Mr. Meyer-Ladewig, Ministerialdirigent, Federal Ministry of Justice, Agent
Mr. Udo Heisseler, Presiding Judge at the Stuttgart Regional Court, Adviser
Mr. David Connor, Federal Ministry of Justice, Adviser
The Applicant
Mr. Klaus Eschen, lawyer
The applicant in person.
THE LAW
The applicant complains of a breach of Article 6 paras. 1 and
3 (c) (Art. 6-1, 6-3-c) of the Convention because he was ordered,
after his conviction, to pay the costs caused by his official defence
counsel, in particular those of the third official defence counsel,
who was appointed without the applicant's consent.
The Commission first notes that proceedings relating to the
applicant's request for a respite or payment facilities are still
pending. However, the respondent Government have not raised any
objection under Article 26 (Art. 26) of the Convention as regards the
exhaustion of domestic remedies and the Commission does not consider
a request for respite as constituting an effective remedy in respect
of the alleged violation. The decision on this request will mainly
depend on an evaluation of the applicant's financial capacity to pay
his debts but will not determine whether the imposition of the legal
aid costs on the applicant violated his Convention rights. There is
consequently no reason to reject the application under Article 26
(Art. 26) of the Convention for non-exhaustion of domestic remedies.
To the extent that it is relevant in the present case,
Article 6 (Art. 6) of the Convention provides:
"1. In the determination of ... any criminal charge
..., everyone is entitled to a fair ... hearing
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(c) ... if he has not sufficient means to pay
for legal assistance, to be given it free when the
interests of justice so require;
..."
The Government consider that these provisions are concerned
with the fairness of the proceedings and the effectiveness of the
defence and these rights were not affected but strengthened by the
appointment of three official defence counsel.
The Commission has already decided in previous cases that it
is not contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention to impose legal aid costs on the convicted defendant and to
claim reimbursement when his financial situation allows payment
(No. 9365/81, Dec. 6.5.82, D.R. 28 p. 229, and No. 9394/81,
Dec. 6.5.82, unpublished).
However, the principal complaint in the present case is the
applicant's allegation that the imposition of costs for an additional
third defence counsel, who was appointed only to secure the trial, was
unreasonable and unfair. This complaint raises a complex issue of law
under the Convention the determination of which must be reserved to an
examination of the merits.
The Commission does not find it appropriate to declare
inadmissible the remaining part of the application which concerns the
imposition of the costs caused by the appointment of the other legal
aid counsel as it equally concerns the interpretation of Article 6
para. 3 (c), (Art. 6-3-c) which is at issue in the entire case.
No other grounds for inadmissibility have been established.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy