AS TO THE ADMISSIBILITY OF
Application No. 19512/92
by Eva PFISTER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 7 September 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 July 1990 by
Eva PFISTER against Germany and registered on 13 February 1992 under
file No. 19512/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1948 and living in
Waldalgesheim. She is represented by Mr. W. Foerster, a lawyer
practising in Wiesbaden.
It follows from the applicant's statements and the documents
submitted that in 1988, criminal proceedings were pending against the
applicant and on 19 July 1988, Mr. L. was appointed as the applicant's
official defence counsel. On 14 October 1988 the applicant choose Mr.
Foerster as her defence counsel. On 21 November 1988 the trial against
the applicant and others started and her chosen defence counsel made
the request to revoke the appointment of the official defence counsel.
It is stated in the request that the chosen counsel had made sure to
be able to attend all hearings and that he would not abandon the
applicant on account of possible inability to pay his fees.
The request was rejected by the trial court's president and an
appeal against this decision was dismissed by the Koblenz Court of
Appeal (Oberlandesgericht) on 9 December 1988 as being inadmissible.
On 12 January 1989, the applicant was convicted by the Regional
Court (Landgericht) in Mainz of furthering prostitution and procuring.
She was sentenced to two years imprisonment on probation. The judgment
became final.
On 25 August 1989, the applicant was presented the bill
concerning the costs of the proceedings which according to the judgment
of 12 January 1989 she had to pay for.
The bill included the costs of the official defence counsel in
the amount of DM 15631.11.
The applicant lodged an appeal (Erinnerung) complaining of the
costs of the official defence. On 27 October 1989 the appeal was
partly granted in that the costs relating to the official defence
counsel were reduced by DM 5443.50.
The applicant however maintained her appeal considering that the
official defence counsel costs should not be imposed on her because she
was defended by a chosen counsel.
On 16 January 1990, the Regional Court rejected this appeal. It
stated that according to Section 143 of the Code on Criminal Procedure
(StPO), the appointment of an official defence counsel could in
principle be withdrawn when the defendant chooses his own counsel. In
the present case however it had been necessary (unabweisbares
Bedürfnis) to continue the trial both with the official defence counsel
and the defendant's chosen counsel. It is pointed out that the
applicant had herself initially requested that Mr. L be appointed as
her official defence counsel stating that she was without means.
Consequently there was danger that in view of the uncertain length of
the trial, chosen defence counsel might eventually discontinue his
activities because the applicant was unable to pay his fees. Therefore
it was necessary in the interest of assuring the proper course of the
trial to maintain the official defence counsel.
An appeal (Beschwerde) against this decision was rejected by the
Regional Court on 28 February 1990 by the Koblenz Court of Appeal. This
court referred to the Federal Court's jurisprudence accordin
it could be justified in the interest of assuring the trial to maintain
an official defence counsel even if the defendant was defended by a
chosen counsel. The fact that the applicant's chosen counsel had given
an assurance that he would attend all hearings of the trial was, in the
Court's opinion, of no relevance as it had nevertheless been possible
in view of the particular complexity of the case that for some reason
or other the chosen defence counsel might not have been able to attend
all hearings.
On the other hand, the question whether or not the applicant was
in a position to reimburse the costs in question was a matter which
became relevant only in the course of the execution proceedings.
COMPLAINTS
The applicant considers that the maintenance of the official
defence counsel was unnecessary and violated Article 6 para. 3 of the
Convention.
THE LAW
The present application raises the question as to whether it is
compatible with Article 6 (Art. 6) for the State to seek to recover
from an accused, after he/she has been convicted, the fees and
disbursements of one or more defense counsel who was appointed by the
competent court on the ground that the interests of justice so required
and who, in accordance with its order, provided him/her during his/her
trial with assistance for which they did not charge him/her at the
time.
This question was in the meantime decided by the European Court
of Human Rights in the affirmative and the Commission can quote from
the Court's judgment of 25 September 1992 in the case of Croissant
(Series A. No. 237-B, paras. 26 et seq.):
"an analysis of this complaint reveals that attention must both
be given to the initial appointment itself and the subsequent
reimbursement order. The former raises - irrespective of the
accused's means - issues under Article 6 (Art. 6), especially as
regards the meaning of the phrase "to defend himself in person
or through legal assistance of his own choosing".....
It is true that Article 6 para. 3 (c) (Art. 6-3-c) entitles
"everyone charged with a criminal offense" to be defended by
counsel of his own choosing (cf. Pakelli v. Germany of 25 April
1983, Series A no. 64, p. 15, para. 31). Nevertheless, and
notwithstanding the importance of a relationship of confidence
between lawyer and client, this right cannot be considered to be
absolute. It is necessarily subject to certain limitations where
free legal aid is concerned and also, as in the present case, it
is for the courts to decide whether the interests of justice
require that the accused be defended by counsel appointed by
them. When appointing defense counsel, the national courts must
certainly have regard to the defendant's wishes; indeed, German
Law contemplates such a course (Article 142 of the Code of
Criminal Procedure). However, they can override those wishes
when there are relevant and sufficient grounds for holding that
this is necessary in the interests of justice."
In the present case the applicant's request to revoke the
appointment of the official defense counsel was rejected on the ground
that this appointment was necessary in the interests of justice in
order to make sure that the applicant was effectively defended by
defense counsel throughout all trial hearings. In view of the
uncertain length of the trial and in view of the applicant's financial
situation, rendering it unlikely that the applicant could pay her
chosen lawyer's fees, the trial court considered it necessary in the
interests of assuring the proper course of the trial to maintain the
official defense counsel.
These grounds are, in the Commission's view, relevant and
sufficient.
Consequently the appointment of an additional defense counsel
cannot, under the circumstances of the present case, be held to have
been incompatible with the requirements of paras. 3 (c) and 1 of
Article 6 (Art. 6-1+6-3-c), taken together.
The question remains to be decided whether the reimbursement
order violated Article 6 (Art. 6) of the Convention. In this respect
it was stated in the aforementioned Croissant judgment:
"Under German Law an accused who is acquitted is, irrespective
of his means, under no obligation to pay either the court costs
or the fees of the court-appointed lawyers; all these items are
borne by the State. On the other hand, a convicted person is in
principle always bound to pay the fees and disbursements of his
court-appointed lawyers, this being held to be a normal
consequence of the conviction.
It is only in the enforcement procedure that follows the final
judgment that the financial situation of the convicted person
plays a role; in this respect, it is immaterial whether he had
sufficient means during the trial, only his situation after
conviction being relevant.
Such a system would not be compatible with Article 6 (Art. 6) of
the Convention if it adversely effected the fairness of the
proceedings. However, it cannot be said that the system
generally produces such a result.
In addition the Commission notes that it did not do so in the
present case. As already stated, the appointment of the (3)
defense counsel was compatible with the requirements of Article
6 (Art. 6). Accordingly, it is not incompatible with the
provision that the applicant is liable to pay their fees. The
national courts were invited to consider it necessary to appoint
them and the amounts claimed for them are not excessive."
These reasons apply, mutatis mutandis, to the present case and
consequently the Commission again cannot find any appearance of a
violation of Article 6 (Art. 6) of the Convention.
Finally it has to be noted that the present application does not
raise the issue as to whether it would be compatible with Article 6
para. 3 (c) (Art. 6-3-c) of the Convention for the State to continue
to seek full or partial reimbursement of expenses after the convicted
person has established, in the enforcement proceedings, that he/she
lacks sufficient means to bear the costs of his/her defense.
It follows that the application has to be rejected as being
manifestly ill-founded in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy