FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 60705/08
by Konstantins PETUHOVS
against Germany
The European Court of Human Rights (Fifth Section), sitting on 9 March 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 1 December 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Konstantins Petuhovs, is a Latvian national who was born in 1977 and lives in Berlin. He was represented before the Court by Mr A. Funck, a lawyer practising in Berlin.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 15 May 2008 the applicant, assisted by an interpreter, was questioned by the Berlin police in criminal investigation proceedings against him. On the same day he was brought before the investigating judge who issued an arrest warrant, charging the applicant with robbery and dangerous bodily injury. The warrant was translated and a copy was handed to the applicant.
On 26 May 2008 the applicant and an accomplice were indicted for joint robbery and dangerous bodily injury. The account of the offence was essentially the same as in the arrest warrant with two exceptions: The arrest warrant mentioned that the victim was knocked down a the second time by the co-accused immediately following the first attack by the applicant, whereas the indictment alleged that the victim was able to take a few steps before being knocked down again. Furthermore, the arrest warrant only mentioned that a bag with a wallet was snatched from the victim, whereas the indictment talked about a blue bag with 25 euros.
On 9 June 2008 the District Court appointed counsel for the applicant and assigned an interpreter for their conversations. Meetings between counsel and the applicant, assisted by an interpreter, were held on 6 June, 7 July, 13 August and 19 September 2008.
After the proceedings against the applicant had been severed and the main proceedings opened, on 18 July 2008 the District Court submitted a decision to refer (Vorlagebeschluss) to the Regional Court, finding that the circumstances of the offence might amount to aggravated robbery, and in view of the then higher expectation of punishment might warrant the referral of the proceedings to the higher court. The Regional Court assumed the proceedings after the defence had submitted observations.
At the trial on 24 September 2008 counsel for the defence applied for the proceedings to be stayed for the reason that the applicant had not received a translation of the indictment of 26 May 2008 which, according to counsel for the defence, was essential for him to prepare his defence.
After deliberations the Regional Court rejected the application, arguing that the arrest warrant, which had been translated, was identical to the indictment and had thus informed the applicant in detail of the nature and cause of the accusation. Furthermore, it had to be assumed that counsel for the defence had discussed the nature and cause of the straightforward accusation with the applicant at one of their several meetings.
The Regional Court held that under these circumstances an oral translation had to be considered sufficient.
The trial then continued with the reading and the translation of the indictment. After hearing the applicant’s pleading to the charges and five witnesses the Regional Court found the applicant guilty of aggravated robbery and dangerous bodily injury. He was sentenced to 4 years’ imprisonment.
The applicant’s appeal on points of law, based on the lack of a written translation of the indictment, was dismissed by the Federal Court of Justice on 22 April 2009 as ill-founded.
On 19 June 2009 the Federal Constitutional Court declined to admit the applicant’s constitutional complaint for examination. It held the complaint to be inadmissible arguing that the prior appeal on points of law had been inadmissible.
COMPLAINTS
The applicant complained under Article 6 § 3 (a) and (b) of the Convention about the failure of the domestic courts to provide him with a translation of the indictment before his trial and the subsequent refusal of the trial court to stay the proceedings in order to allow for additional time for the preparation of his defence.
THE LAW
The applicant, invoking Article 6 § 3 (a) and (b) of the Convention, complained that the lack of a translation of the indictment prior to his trial and the trial court’s subsequent rejection of his application to stay the proceedings violated his right to be informed about the accusation in a language that he understood and hindered the adequate preparation of his defence. Article 6, insofar as relevant, provides:
“3. Everyone charged with a criminal offence has the following minimum rights:
(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b)to have adequate time and facilities for the preparation of his defence;”
The Court notes at the outset that it is not required to decide whether or not the applicant has exhausted domestic remedies, as the complaint is in any event inadmissible for the following reasons.
The Court reiterates that Article 6 § 3 (a) of the Convention affords the defendant the right to be informed, in detail, of the cause of the accusation. While the provision does not specify that the relevant information should be given in writing or translated in written form for a foreign defendant, it does, however, point to the need for special attention to be paid to the notification of the “accusation” to the defendant. An indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on notice of the factual and legal basis of the charges against him or her. A defendant not familiar with the language used by the court may be at a practical disadvantage if the indictment is not translated into a language which he or she understands
(see Sejdovic v. Italy [GC], no. 56581/00, § 89, ECHR 2006‑II; Kamasinski v. Austria, 19 December 1989, § 79, Series A no. 168 and Tabaï v. France (dec.), no. 73805/01, 17 February 2004). While the extent of the detailed information referred to in paragraph 3 (a) varies depending on the particular circumstances of each case, the accused must at least be provided with such information as is necessary to understand fully the extent of the charges,
in order to prepare an adequate defence. In this respect, the adequacy of the information must be assessed in relation to sub-paragraph (b) of
Article 6 § 3, which confers on everyone the right to have adequate time and facilities for the preparation of the defence, and in the light of the more general right to a fair hearing embodied in Article 6 § 1 (see Mattoccia v. Italy, no. 23969/94, § 60, ECHR 2000‑IX and Pélissier and Sassi v. France [GC], no. 25444/94, §§ 52, 54, ECHR 1999‑II). The Court will therefore examine the present complaint under sub-paragraphs (a) and (b) of Article 6 § 3 of the Convention, taken together with paragraph 1 of that Article, which provides for a fair trial.
In the instant case the Court first of all notes that the charges against the applicant were not complex as regards either the facts or the law. The part of the indictment dealing with the one and only offence the applicant was accused of is merely one page long. Previously the applicant had already been questioned at length and in the presence of interpreters about the suspected offence, firstly by the police and then by the investigating judge. On this basis alone he must have been made aware in sufficient detail of the accusations levelled against him.
Furthermore, the arrest warrant issued one day after the alleged offence spelled out in writing the factual circumstances of the offence as well as the legal classification of these acts. The warrant was orally translated and the applicant was provided with a copy. While the Court observes that the applicant, until the time the charges were read out at trial, never received an official translation of the indictment it also notes that the charges contained therein were essentially the same as in the arrest warrant except for minor details as regards the timing of the two assaults on the victim and the exact value of the stolen goods. Finally, the Court notes that the applicant, assisted by an interpreter, met with his lawyer four times over a period of more than three months prior to his trial. During this time neither the applicant nor counsel ever made a request for a translation of the indictment. In this context it can moreover safely be assumed that counsel for the defence too discussed with the applicant in detail the charges contained in the indictment.
The Court infers from the facts submitted by the applicant that, as a result of the oral translation of the arrest warrant, the help of counsel for the defence as well as the assistance of an interpreter the applicant, from the very beginning, had been sufficiently informed of “the nature and cause of the accusation against him”, for the purposes of paragraph 3 (a) of Article 6. In the Court’s view, in these circumstances the absence of a written translation of the indictment neither prevented the applicant from preparing his defence and defending himself nor denied him a fair trial, in particular since neither before the national courts nor before this Court did he explain in what way the lack of a translation allegedly interfered with his defence rights. Accordingly, no violation of Article 6 paragraph 3 (a) or (b) can be found.
It follows that the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy