AS TO THE ADMISSIBILITY OF
Application No. 11311/84
by Mario FEDELE
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 9 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
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;
- the application introduced on 26 April 1984
by Mario Fedele against the Federal Republic of Germany and registered
on 17 December 1984 under file N° 11311/84;
- the Commission's decision of 8 May 1985 to communicate the
application to the respondent Government for written observations;
- the Government's observations of 2 December 1985;
- the Government's letter of 30 January 1986;
- the applicant's observations of 18 March 1987;
- the Öztürk judgment of 21 February 1984 (Eur. Court H.R.,
Series A no. 73) as confirmed in the Lutz judgment of 25 August 1987
(Eur. Court H.R., Series A no. 123);
Having deliberated;
Decides as follows:
&_THE FACTS&S
The facts of the case, which are agreed between the parties,
may be summarised as follows:
The applicant, an electro-technician by profession, is an
Italian citizen born in 1938 and residing in Essen (Federal Republic
of Germany).
By an order of 9 August 1983, the Düsseldorf administrative
authorities imposed on the applicant a regulatory fine (Geldbusse) of
DM 100 for a road traffic offence. The applicant lodged an objection
(Einspruch) against this decision and asked to be assisted by an
interpreter at the hearing before the District Court (Amtsgericht) of
Düsseldorf.
On 22 September 1983 the applicant was summoned to a hearing
on 26 October 1983. On 14 October 1983 his lawyers requested an
adjournment on the ground that he was going to be in Italy from
20 October to 20 November 1983. This request was granted and a new
hearing fixed for 23 November 1983.
At the hearing on 23 November 1983 the applicant failed to
appear. His counsel, two police officers summoned as witnesses
and an interpreter were present. The District Court dismissed
the applicant's objection against the regulatory fine order of
9 August 1983. It stated that he "had failed to appear without
sufficient excuse although he had been ordered to appear in person".
The interpreter and the witnesses were indemnified in accordance with
the applicable provisions.
By letter dated 28 November and received at the Court on
29 November 1983 counsel for the applicant applied for reinstatement.
He submitted a medical certificate dated 22 November stating that the
applicant was prevented by a feverish infection from attending the
hearing. On 8 December 1983 the applicant was granted reinstatement,
at his own expense under Article 473 para 7 of the Code of Criminal
Procedure (Strafprozessordnung), and a new hearing was fixed for
21 December 1983. By a summons served on 12 December the applicant
was again ordered to appear in person.
By a letter received at the Court on 16 December 1983 the
applicant's counsel again requested an adjournment. He stated that
the applicant had already booked his home leave in Italy and would
only be returning after 15 January 1984. The Court granted the
request and fixed a new hearing for 16 January 1984.
At the hearing on 16 January 1984 the applicant appeared,
assisted by his counsel. An interpreter and two witnesses were also
present. The hearing was, however, adjourned as a police officer who
had been called as a witness had failed to appear. The police officer
was ordered to pay a coercive fine (Ordnungsstrafe), but this order
was later withdrawn on the ground that he had given sufficient excuse
for his default.
At the hearing on 16 January a new hearing was fixed for
1 February 1984 and the applicant was again summoned; he did not
object to the new date.
However, by letter dated 27 January 1984 counsel for the
applicant once again requested an adjournment; he stated that his
client was going to be in Italy for reasons connected with his work
and would not be returning until 15 February 1984. This letter
arrived at the mail office of the Düsseldorf District and Regional
Courts on Saturday, 27 January, but did not until Monday, 30 January 1984
come to the attention of the District Court Judge dealing with the
case, who on the same day refused to adjourn the hearing.
At the hearing on 1 February 1984 the applicant failed to
appear. His counsel, two police officers as witnesses and an
interpreter were present. The Court again dismissed the applicant's
objection against the regulatory fine order of 9 August 1983 and
stated that he had "failed to appear without sufficient excuse,
although he had been ordered to appear in person".
By letter dated 14 February and received at the Court on
15 February 1984 the applicant's counsel again applied for reinstate-
ment. He submitted that hostile weather conditions had prevented the
applicant from travelling from Rome to Essen on 30 January 1984. This
application was on 15 February 1984 refused by the District Court on
the ground that it had not been made "within the time allowed, namely,
within one week of cessation of the hindrance". The Court also
ordered that the applicant should bear the costs of the proceedings
in accordance with Articles 46 and 109 of the Regulatory Offences Act
(Gesetz über Ordnungswidrigkeiten) and Article 465 of the Code of
Criminal Procedure.
The applicant's appeal (Beschwerde) against this decision was
dismissed by the Regional Court (Landgericht) of Düsseldorf on
10 April 1984. The Regional Court confirmed that the request for
reinstatement had been filed out of time. It further found that "the
grounds given also do not justify reinstatement. The simple assertion
that it had not been possible to get from Rome to Düsseldorf between
30 January 1984 and 1 February 1984 for a previously arranged hearing
on account of 'hostile weather conditions' is not enough to make a
blameless default seem probable. There is no need to establish
elaborately that the submission of a communication from an Italian
firm written in the Italian language and dated 6 February 1984 also
does not constitute sufficient substantiation of this application, the
purport of which is already inappropriate."
The following costs for interpretation were incurred at the
hearings before the District Court: DM 141.10 on 23 November 1983,
DM 99.80 on 16 January 1984 and DM 140.10 on 1 February 1984, making a
total of DM 381.-. Payment of this sum was claimed from the applicant
in a bill of costs (Kostenfestsetzungsbeschluss) of 8 March 1984.
Counsel for the applicant filed an objection (Erinnerung)
against this bill relying on the Öztürk judgment of 21 February 1984
(Series A no. 73) of the European Court of Human Rights. On 28 August 1984
the District Court dismissed the objection. It considered that the
relevant German legislation had not been annulled by the Öztürk judgment,
that it was for the legislator to amend legislation found to be in
breach of the Convention, and that, pending such amendment, the
domestic courts were not bound by the Öztürk judgment.
The applicant's appeal (Beschwerde) against this decision was
on 9 October 1984 dismissed by the Regional Court on basically the
same grounds.
&_COMPLAINTS&S
The applicant submits that the bill of costs of 8 March 1984,
as confirmed by the District Court and the Regional Court, violated
his right under Article 6 para. 3 (e) of the Convention to the free
assistance of an interpreter in the regulatory proceedings concerned.
He also complains that all the decisions given in his case were
notified to him in German.
&_PROCEEDINGS BEFORE THE COMMISSION&S
The application was introduced on 26 April 1984 and registered
on 17 December 1984.
On 8 May 1985 the Commission decided to communicate the
application to the repondent Government for written observations.
The Government's observations were dated 2 December and
arrived on 9 December 1985.
By letter of 20 December 1985 the applicant was invited to
submit his reply and to state whether he wished to apply for free
legal aid under the Addendum to the Commission's Rules of Procedure.
By letter of 10 January 1986 the applicant refused to reply to
the Government's observations on the ground that they were drafted in
German. He also submitted a newspaper article, written in German, and
objected to the practice of regulatory fines in Northrhine-Westphalia
as described in that article.
Under cover of their letter of 30 January, which arrived on
4 February 1986, the Government submitted an English translation of
their observations of 2 December 1985. They also informed the
Commission that the applicant had been reimbursed the interpretation
costs for the hearing on 16 January 1984.
The English translation of the Government's observations and a
copy of their letter of 30 January 1986 were sent to the applicant on
24 February 1986. At the same time he was again invited to state
whether he wished to apply for legal aid. In view of the terms used
in his letter of 10 January 1986 the applicant's attention was also
drawn to the clause concerning abusive applications in Article 27
para. 2 of the Convention.
No reply to this letter was received from the applicant. By
letter of 23 June 1986 his attention was therefore drawn to the
possibility that his application might be struck out under Rule 44
para. 1 (b) of the Commission's Rules of Procedure.
Thereupon, by letter of 25 June which arrived on 30 June 1986,
the applicant informed the Commission that he had been reimbursed the
interpretation costs for the hearing on 16 January 1984. He insisted
that the Government provide him with an Italian translation of their
observations and refused to amend the terms of his letter of
10 January 1986.
On 11 October 1986 the Commission considered the state of
proceedings. It noted that the applicant had been reimbursed the
interpretation costs for the hearing on 16 January 1984; that he was
not represented by counsel and had not applied for legal aid; and
that, as to his request to receive the Government's observations in
Italian, assistance was being provided by the Commission's Secretariat.
By letter of 20 November 1986 the applicant was informed that
the Government, in submitting an English translation of their
observations, had acted in accordance with Rule 24 para. 1 of the
Commission's Rules of Procedure. The applicant was free, under Rule 24
para. 3, to continue to address the Commission in Italian. As an
exceptional measure, and in order to facilitate the preparation of his
reply to the Government's submissions, a summary of these in Italian
was being drafted in the Commission's Secretariat.
A full translation of the Government's observations in Italian
was sent to the applicant on 13 February 1987. His observations in
reply were dated 18 March and arrived on 23 March 1987.
A French translation by the Secretariat of the applicant's
reply was sent to the Government on 31 March 1987.
&_SUBMISSIONS OF THE PARTIES&S
I. The Government
1. Given that the Court Costs Act (Gerichtskostengesetz) has
not extended the free provision of interpreting services to regulatory
proceedings, the interpreting costs of DM 99.80 incurred at the court
hearing on 16 January 1984 were formally correctly assessed by the
official responsible for costs assessment. In the light of the
Court's judgment of 21 February 1984 in the Öztürk case the Land of
Northrhine-Westphalia has, however, reimbursed the applicant this sum.
2. Interpreting costs incurred at the court hearings on
23 November 1983 and 1 February 1984 - amounting on the first occasion
to a sum of DM 141.10 and on the second to DM 140.10 and thus
totalling DM 281.20 - were rightly claimed from the applicant. His
appearance in person having been ordered, he culpably failed to appear
at the court hearings in question so that it was not possible for the
case to be heard. Nevertheless, the interpreter summoned on express
application by the applicant had to be reimbursed on each occasion.
a) It is true that the applicant subsequently apologised
for his failure to appear on 23 November 1983 with the excuse that he
had been ill with a feverish influenza infection. Since, however, the
medical certificate by his doctor in Essen had already been issued on
22 November 1983 it would have been possible and reasonable for the
applicant at least to have telephoned his counsel in Essen or the
registry of the Düsseldorf District Court to say that he was ill -
which would have made it possible to put the interpreter off and to
avoid costs.
b) The applicant also did not appear at the court hearing on
1 February 1984. This hearing had been arranged at the hearing on
16 January 1984. Although initially he had raised no objections to
this hearing, he let it be known only two days before the hearing was
due to take place that he would be in Italy until mid February and
that he was requesting an adjournment. The letter from his counsel
dated Friday, 27 January 1984 was received at the court's incoming
mail department only on Saturday, 28 January 1984. On account of the
weekend it could only be placed before the judge for his decision on
Monday, 30 January 1984. The "excuse" that "hostile weather
conditions" had prevented the applicant from travelling (by car) from
Rome to Düsseldorf was rightly not accepted by the Court. Consequently,
the applicant also has to have the cause of the avoidable costs
incurred at this hearing imputed to himself.
3. Article 6 para. 3 (e) of the Convention merely requires an
accused to be given the free assistance of an interpreter for an oral
court hearing if the former cannot understand the language used in court.
Irrespective of the question whether it is a case of criminal or of
regulatory proceedings, it cannot be inferred from this provision that
the treasury has to meet the costs of interpreting where the accused
or a person involved in regulatory proceedings fails - in a manner for
which he is accountable - to appear at the oral hearing even though he
knew that an interpreter would be summoned and that costs would thus
be incurred.
The costs thus caused - although avoidable - must therefore be
borne by the applicant just as the witness reimbursements and other
possible costs incurred at the same hearing have to be, and actually
were - without objection - borne by him.
4. The Goverment conclude with regard to the remaining
interpretation costs that amounted to DM 281.20, i.e. the costs
incurred at the hearings on 23 November 1983 and 1 February 1984,
that the application is manifestly ill-founded.
II. The applicant
The application is well-founded with regard to the remaining
interpretation costs, for the reasons already stated. In particular,
snow and ice on the roads prevented the applicant from travelling by
car from Italy to Düsseldorf in order to appear at the hearing on
1 February 1984. The charge and the proceedings against him were
absurd, all decisions were notified in German and the police officer
called as a witness, who failed to appear on 16 January 1984, was
given preferential treatment. The respondent State should not be
permitted to interpret human rights as it sees fit.
THE LAW
1. The applicant complains of the bill of costs, issued by the
District Court of Düsseldorf on 8 March 1984, by which he was ordered
to pay interpretation costs for the hearing on 16 January 1984, at
which he was present, and for the hearings on 23 November 1983 and
1 February 1984, at which he did not appear. He invokes Article 6 para. 3 (e)
(Art. 6-3-e) of the Convention, which provides that everyone "charged with a
criminal offence" shall have the "free assistance of an interpreter" if he
cannot understand or speak the language used in Court.
2. The Commission, having regard to the Öztürk judgment of
21 February 1984 (Eur. Court H.R., Series A no. 73, p. 21 para. 56) as
confirmed in the Lutz judgment of 25 August 1987 (Eur. Court H.R.,
Series A no. 123, paras. 50 et seq.), finds that the applicant, in the
regulatory proceedings complained of, was a person "charged with a
criminal offence", and therefore entitled to the "free assistance" of
an interpreter, if he could not understand or speak German.
3. The applicant received this assistance at the hearing on
16 January 1984, at which he was present. He was assisted by an
interpreter appointed by the Court. It is true that, by the bill of
costs of 8 March 1984, he was subsequently charged with the costs of
interpretation at this hearing. However, following the introduction
of the present application and its communication to the respondent
Government, the applicant was reimbursed these costs. To this extent
his claim under the Convention, having been satisfied, is not pursued.
4. It thus remains to be examined whether the bill of costs violated the
applicant's rights under Article 6 para. 3 (e) (Art. 6-3-e), insofar as it
charged him with the costs of the interpreter at the two hearings at which he
did not appear - on 23 November 1983 and 1 February 1984.
5. Article 6 para. 3 (e) (Art. 6-3-e), by the word "assistance", indicates
that it concerns the accused who is present at the hearing. Only a
person who attends the trial - and who, being present, "cannot
understand or speak the language used in court" - can be "assisted" by
an interpreter.
6. It follows that the applicant cannot under Article 6 para. 3 (e)
(Art. 6-3-e) claim the free "assistance" of an interpreter for the hearings on
23 November 1983 and 1 February 1984, at which he did not appear.
7. The Commission concludes that the applicant's complaint,
concerning the imposition of costs of the interpreter called for those
hearings, is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
8. The applicant finally complains that all decisions given in
his case were notified to him in German. In this respect the
Commission recalls that, in the domestic proceedings, the applicant
was represented by a German lawyer, and that he was assisted by an
interpreter at the hearing on 16 January 1984. The Commission
therefore finds no appearance of a violation of the Convention and
concludes that this complaint is also manifestly ill-founded.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)