AS TO THE ADMISSIBILITY OF
Application No. 10551/83
by Cafer ZENGIN
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
4 March 1986 the following members being present:
MM C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
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 11 January 1983 by Cafer ZENGIN
against the Federal Republic of Germany and registered on
12 September 1983 under file No. 10551/83;
- the judgment given by the European Court of Human Rights in the
Öztürk case on 21 February 1984 (Series A No. 73);
- the Rapporteur's first report, under Rule 40 of the Commission's
Rules of Procedure, of 29 April 1985;
- the Commission's decision of 8 May 1985 to communicate the
application to the respondent Government under Rule 42 (2)(b);
- the Government's observations of 20 September 1985;
- the applicant's reply of 3 October 1985;
- the Government's further observations of 7 November 1985;
- the Rapporteur's second report of 13 December 1985;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows:
The applicant is a Turkish citizen, born in 1946 and residing
at Nordheim (Federal Republic of Germany). In the proceedings before
the Commission he is represented by Mr N. Wingerter, a lawyer
practising in Heilbronn.
On 9 October 1981, in Heilbronn, the applicant caused an
accident with his motor vehicle which resulted in approximately 5,000
DM worth of damage to the other vehicle.
By a regulatory fine order (Bussgeldbescheid) of 9 February
1982 the Office of Public Order (Amt für öffentliche Ordnung) of the
city of Heilbronn imposed on the applicant a regulatory fine
(Geldbusse) of 100 DM for careless driving (Ausserachtlassung der
nötigen Vorsicht) infringing Articles 1 para. 2 and 49 of the Road
Traffic Regulations (Strassenverkehrsordnung). This order was issued
under Article 17 of the Regulatory Offences Act (Gesetz über
Ordnungswidrigkeiten). The applicant was also ordered to pay a fee
(Gebühr) of 10 DM and expenses (Auslagen) of the Office of 4 DM.
On the applicant's objection (Einspruch) the District Court
(Amtsgericht) of Heilbronn fixed 7 May, 1.30 pm, as date and time of
the trial. At counsel's request, filed in reply to a question from the
Court, an interpreter was appointed for his hearing.
Immediately before the hearing the applicant, having discussed
the case with counsel, assisted by the interpreter, withdrew the
objection. The Court then ruled that the applicant also had to bear
the further costs of the proceedings and his own expenses.
On 26 May 1982 the Court Cashier's Office (Gerichtskasse) fixed
the costs to be paid by the applicant at 120.20 DM, of which 53 DM
represented interpreter's fees.
The applicant entered an objection (Erinnerung) against the
bill of costs to the extent that it included the interpreter's fee.
He relied on Article 6 of the Convention and referred to the
Commission's decision of 15 December 1981 admitting Application No.
8544/79 (Öztürk v. the Federal Republic of Germany, D.R. 26, 55).
The District Court dismissed the objection on 27 October 1982
on the ground that regulatory fine proceedings were administrative
proceedings to which Article 6 of the Convention did not apply.
On 10 November 1982 counsel submitted the Commission's report
of 12 May 1982 in the Öztürk case and requested the District Court to
reconsider its decision.
The District Court ruled on 25 November 1982 that counsel's
submissions did not call for an amendment of the Court's ruling of 27
October 1982 since a final decision of the European Court of Human
Rights had not yet been delivered.
COMPLAINT
The applicant submits that proceedings concerning regulatory
offences are criminal proceedings covered by Article 6 of the
Convention. He alleges a violation of Article 6 para. 3 (e) and relies
on the judgment given by the European Court of Human Rights in the
Öztürk case on 21 February 1984 (Series A No. 73).
SUBMISSIONS OF THE PARTIES
The Government submit that Article 6 para. 3 (e) of the
Convention is intended to secure fair criminal proceedings also for the
foreigner who does not understand the language used in court, and to
avoid any procedural disadvantage arising from this circumstance. This
principle was observed in the present case. The Court asked the
applicant to state whether an interpreter was required for the hearing
and an interpreter was made available following counsel's request.
In the Government's view, however, Article 6 para. 3 (e) cannot
be interpreted as obliging the Contracting States to pay the fee of an
appointed interpreter where an objection is withdrawn immediately
before the trial so that the appointment of the interpreter cannot be
cancelled in time. It must be expected of the applicant that - if
judicial control has been requested and a hearing has been fixed - he
examines in time the question of whether he wishes to uphold the
objection or to withdraw it, thereby avoiding undue administrative time
and effort. Article 109 of the Regulatory Offences Act thus provides
that the defendant has to bear the costs of the court proceedings if
he withdraws his objection to the regulatory fine order.
Moreover, regulatory offences, under the law of the Federal
Republic of Germany, are not criminal but administrative matters.
Sanctions in the form of regulatory fines are imposed by the
administrative authorities. The fact that this case involves minor
matters without criminal law consequences for the defendant do not
however free him from a responsible preparation of his proceedings and
from his obligation towards the general public to alleviate the damage.
Costs caused by attributable delays and similar circumstances have to
be borne by the person causing them. This also applies to
interpreter's fees. It would amount to a preferential treatment of the
foreign national, not covered by the purpose of Article 6 para. 3 (e),
were one to free him from such costs as well and make the tax-payer
liable for them. Particularly in view of the budgetary problems facing
the State and the priorities to be established by the organs of justice
in suppressing serious crime and in their other tasks, this is not
justified and cannot be deduced from the Convention.
The Government also observe that Article 6 para. 3 (e) applies
only to the relations between the accused and the judge and does not
cover relations between the accused and his defence counsel (No.
6185/73, Dec. 29.5.75, D.R. 2, 68).
The Government conclude that the application is manifestly
ill-founded.
The applicant submits that the present case cannot be
distinguished from the Öztürk case, where the objection against the
regulatory fine was not withdrawn before, but only during the trial.
The present applicant could not ascertain the chances of his objection
until immediately before the trial. The bill of costs did not state
that he had to pay the fee of the interpreter because of the late
withdrawal of the objection. The Heilbronn Court always includes
interpreter's fees in bills of costs, having been invited by the
Federal Minister of Justice to disregard the judgment of the European
Court of Human Rights in the Öztürk case.
The applicant here refers to:
- a circular letter of the Federal Ministry of Justice to the
Ministers of Justice of the Länder (Landesjustizverwaltungen),
dated 8 June 1984, in which the Ministry expressed the view
that the Court's judgment on the merits of 21 February 1984
in the Öztürk case "has not modified domestic law" ("das
innerstaaatliche Recht nicht geändert") and that the
conclusions to be drawn from that judgment are being
considered; and
- a further letter of 24 September 1985, in which the Ministry
stated that "the situation remains unchanged" ("der Sachstand
unverändert ist").
THE LAW
The Commission has had regard to the judgment given by the
European Court of Human Rights in the Öztürk case on 21 February 1984
(Series A No. 73). In that judgment the Court held that Article 6
para. 3 (e) (Art. 6-3-e) of the Convention had been violated.
The Commission observes that the present application, like the
Öztürk case, concerns an order to pay the fees of an interpreter who
had been appointed in court proceedings relating to a regulatory
offence.
It is disputed between the parties whether the present case,
in which the objection against the regulatory fine order was withdrawn
immediately before the District Court's hearing, can for the purposes
of Article 6 para. 3 (e) (Art. 6-3-e) be distinguished from the Öztürk
case, in which the objection was only withdrawn in the course of the
trial.
This question cannot in the Commission's view be determined at
the admissibility stage but must be decided on the basis of an
examination of the merits of the present application.
It follows that the application is not manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)