CASE OF LUEDICKE, BELKACEM AND KOÇ v. GERMANY
Preliminary objection rejected (disappearance of object of proceedings);Violation of Art. 6-3-e;Not necessary to examine Art. 14;Pecuniary damage - financial award;Just satisfaction partially reserved
10. At the time when they introduced their applications with the Commission, Mr. Gerhard W. Luedicke, Mr. Mohammed Belkacem and Mr. Arif Koç were resident in the Federal Republic of Germany. The three applicants were charged before the German courts with the commission of various criminal offences. Since they were not sufficiently familiar with the language of the country, they were assisted by an interpreter in accordance with German law. After conviction, they were ordered, amongst other things, to pay the costs of the proceedings, including the interpretation costs. They consider that the inclusion of this latter item is contrary to, inter alia, Article 6 para. 3 (e) (art. 6-3-e) of the Convention. 11. In criminal proceedings, the courts must use the services of an interpreter whenever the accused is not conversant with German. The first sentence of section 185 para. 1 of the Constitution of the Courts Act (Gerichtsverfassungsgesetz) provides as follows: "If the proceedings before the court involve the participation of persons who do not have command of the German language, an interpreter shall be employed." Pursuant to this provision, the assistance of an interpreter is made available as a matter of course to an accused - whatever his nationality - who does not understand or speak the German language. The same rule is applicable to the examination of witnesses who do not have command of the German language. The obligation to employ an interpreter is, however, subject to one exception, namely when all the participants are familiar with the foreign language (section 185 para. 2 of the Constitution of the Courts Act). 12. Interpretation costs are part of the costs of the proceedings which, according to Article 464 (a) para. 1, first sentence, of the Code of Criminal Procedure (Strafprozeßordnung), are made up of "the fees (Gebühren) and expenses of the Treasury". The latter are listed in the Court Costs Act (Gerichtskostengesetz) which in turn refers to the Witnesses and Experts (Expenses) Act (Gesetz über die Entschädigung von Zeugen und Sachverständigen). Section 17 para. 2 of the last-mentioned Act provides that "for the purposes of compensation, interpreters shall be treated as experts". According to Article 465 para. 1, first sentence, of the Code of Criminal Procedure: "The accused shall bear the costs of such part of the proceedings as concerned the act that gave rise to the conviction ..." Under this provision, the question of payment of the costs of the proceedings arises only after there has been a final ruling on the guilt of the accused; an accused person may never be required to make any advance payment on these costs. In the event of acquittal or of proceedings being discontinued, the Treasury in principle bears the costs. On the other hand, if the individual concerned is convicted, he has to pay the costs, but only such proportion thereof as relates to the criminal charges upheld by the court. 13. As concerns interpretation costs in particular, Article 6 para. 3 (e) (art. 6-3-e) of the Convention, which forms an integral part of the domestic law, specifies that "everyone charged with a criminal offence has the (right) ... to have the free assistance of an interpreter if he cannot understand or speak the language used in court". This text has not been interpreted and applied by the German courts in a uniform way. Certain courts read it as embodying an obligation for the Treasury to bear the costs in question for all time and in all cases; other courts, including some higher courts, consider on the contrary that while Article 6 para. 3 (e) (art. 6-3-e) - like the Code of Criminal Procedure - exempts an accused (that is, a person "charged with a criminal offence") from paying in advance for the expenses incurred by the use of an interpreter, it does not prohibit such expenses being awarded against a convicted person. 14. Interpretation costs are assessed in accordance with a scale fixed by law and not by the interpreters themselves; the assessment is made by a court official (Kostenbeamter) when the overall costs of the proceedings are determined. 15. Mr. Gerhard W. Luedicke is a citizen of the United Kingdom and was, at the time of his application to the Commission, a member of the British Forces stationed in the Federal Republic of Germany. 16. On 5 May 1972, the Bielefeld District Court (Amtsgericht) convicted him of a road traffic offence. He was fined DM 900 and ordered to pay the costs of the proceedings. On 2 June 1972, after the judgment had become final, the public prosecutor’s department (Staatsanwaltschaft) attached to the Bielefeld Regional Court (Landgericht) served Mr. Luedicke with a notice to pay the sum of DM 1,330.90, made up of the fine of DM 900 and the fees (Gebühren) due in respect of the criminal proceedings (DM 90) and the withdrawal of his driving licence (DM 30), together with police costs (DM 85.50) and interpretation costs (DM 225.40). DM 154.60 of the last item related to the oral hearing. 17. On 30 June 1972, the applicant, represented by the Command Legal Aid Section at Bielefeld, entered an appeal (Erinnerung) against this assessment of costs; he maintained that the assessment was contrary to Article 6 para. 3 (e) (art. 6-3-e) of the Convention in so far as it concerned payment of the interpretation costs. Following the refusal of the auditor (Bezirksrevisor) attached to the Bielefeld Regional Court to modify the assessment, the matter was referred to the Bielefeld District Court which dismissed the appeal on 31 August 1972. The District Court stated in particular: "The object of Article 6 (art. 6) of the Convention ... is to guarantee certain fundamental rights to everyone faced with criminal proceedings. In Germany, this Article (art. 6) applies to proceedings brought against foreigners as well as to those brought against German nationals. It is not the aim of the provision to place foreigners in a more favourable position than German nationals. This, however, would be the case if a foreign convicted person was not required to pay the interpretation costs. For example, under the German law of procedure and costs, a deaf-and-dumb convicted person against whom proceedings cannot be taken without a special interpreter must pay the costs of interpretation. So must also a German convicted person in whose trial non-German-speaking witnesses have to be examined with the assistance of an interpreter. Under the rules of German criminal procedure every person finally convicted must himself bear all the costs of the proceedings, including ... the interpretation expenses. This obligation is not contrary to Article 6 (art. 6) ... which does not forbid awarding the costs of the proceedings against a person convicted of an offence. Under German procedural law, however, no accused person need make advance payment for the costs of interpreters ... This would appear not to be the case in other signatory States of the Convention as otherwise it would be difficult to understand the wording of Article 6 para. 3 (e) (art. 6-3-e). The Court thus interprets Article 6 para. 3 (e) (art. 6-3-e) ... as a provisional exemption from paying the interpretation costs ..." 18. On 8 February 1973, following an "immediate appeal" (sofortige Beschwerde) by Mr. Luedicke, the Bielefeld Regional Court confirmed the impugned decision, relying, inter alia, on the "correctness of the reasoning" contained in that decision. On 4 May 1973, the applicant paid the costs of the proceedings, including the interpretation costs. 19. Mr. Mohammed Belkacem is an Algerian citizen, born in 1954. After completing his apprenticeship as a locksmith in Algeria, he rejoined his father in the Federal Republic of Germany where he followed various occupations. 20. In December 1973, he was involved in a dispute in a Berlin night-club during which another client lost his coat. He was charged with robbery and with assault occasioning bodily harm; his case was tried by the Berlin-Tiergarten Juvenile Court (Jugendschöffengericht). On 8 April 1974, the Juvenile Court convicted him of assault occasioning bodily harm. He was sentenced to four weeks’ imprisonment (Dauerarrest) - a sentence deemed to have been served during his detention on remand - and to a fine of DM 500, and he was ordered to pay the costs of the proceedings. 21. On 10 April 1974, Mr. Belkacem filed an "immediate appeal" against the order as to costs insofar as the interpretation costs had been included in the award. He submitted that Article 6 para. 3 (e) (art. 6-3-e) of the Convention granted him exemption from payment of the costs in question. On 13 June 1974, the Berlin Regional Court dismissed the appeal. The Regional Court reasoned that, since no assessment of costs had yet been made, there had been no decision capable of being challenged on appeal. The Regional Court further stated that the Juvenile Court would have acted improperly if it had omitted the interpretation costs from its decision on the costs of the proceedings - the former costs, according to Article 464 (a) of the Code of Criminal Procedure read in conjunction with the Court Costs Act and the Witnesses and Experts (Expenses) Act, constituting a component of the latter costs. Furthermore, it was added, Article 6 para. 3 (e) (art. 6-3-e) of the Convention did not prohibit a convicted person being made to bear interpretation costs. 22. On 11 April 1975, the Berlin-Tiergarten District Court served Mr. Belkacem with a notice to pay costs amounting to DM 665.63, including DM 321.95 for interpretation costs. The latter sum comprised the expenses incurred in respect of Mr. Belkacem’s appearance before the judge on 17 December 1973 (DM 33.25), the review on 14 January 1974 of his detention on remand (Haftprüfungstermin) (DM 67.60), the translation of the indictment (DM 90.20) and the trial hearing on 8 April 1974 (DM 130.90). The applicant unsuccessfully challenged the inclusion of interpretation costs in this assessment of the costs. On 29 May 1975, his appeal was dismissed by the District Court which held, inter alia, that Article 6 para. 3 (e) (art. 6-3-e) of the Convention did not prevent interpretation costs being awarded against a convicted person. Mr. Belkacem then lodged an "immediate appeal" which was rejected by the Berlin Regional Court on 2 October 1975. As far as Article 6 para. 3 (e) (art. 6-3-e) was concerned, the Regional Court referred to its decision of 13 June 1974 and continued: "In the light of the context of Article 6 para. 3 (art. 6-3) ..., which lays down fundamental guarantees for a fair trial, the Court ... interprets sub-paragraph (e) (art. 6-3-e) to mean that the assistance of an interpreter must not be made dependent on the accused’s making any advance payment. This sub-paragraph guarantees a court hearing for a foreigner who is ignorant of the language, regardless of his capacity to pay. Who finally has to bear the costs of interpretation after the proceedings have terminated is a different question. That after conviction this may be the accused is not excluded by Article 6 para. 3 (e) (art. 6-3-e) ..." 23. On 5 May 1977, following a request by Mr. Belkacem, the Berlin Justizkasse allowed him to defer payment "until the decision of the Commission of Human Rights be known". From that time, he has not been required to pay the costs in question since, at the request of the Government, the relevant Berlin authorities (Landesjustizverwaltung) have suspended recovery awaiting the judgment of this Court. 24. Mr. Arif Koç, a Turkish citizen born in 1940, has been employed in the Federal Republic of Germany in various trades, including mining and the construction industry. When he applied to the Commission, he was living at Geilenkirchen-Waurichen. On 12 April 1976, he notified the relevant authorities in Alsdorf, near Aachen, his last place of residence in Germany, of his intention to return to Turkey. 25. On 6 December 1973, the Assize Court attached to the Regional Court (Schwurgericht beim Landgericht) at Aachen convicted Mr. Koç of causing grievous bodily harm. He was sentenced to a year’s imprisonment, but the balance of his sentence remaining after allowance had been made for his detention on remand was commuted to a period of probation. The court ordered the applicant to bear the costs of the proceedings "with the exception, however, of the costs occasioned by the assistance of the Turkish-language interpreter, which costs are to be borne by the Treasury". Although taking notice of the conflicting practice of the German courts in this connection, the Assize Court held that the "free" assistance of an interpreter, as guaranteed by Article 6 para. 3 (e) (art. 6-3-e) to every accused not conversant with the language of the court, is to be understood as being free once and for all time. 26. On an "immediate appeal" by the public prosecutor’s department, the Cologne Court of Appeal (Oberlandesgericht), in a fully reasoned decision delivered on 5 June 1975, set aside the Assize Court’s judgment insofar as it related to the interpretation costs. The Court of Appeal stated: "On [its] wording, it is controversial whether (Article 6 para. 3 (e)) (art. 6-3-e) forbids a convicted person’s being charged with the costs of interpretation under the above-cited provisions relating to costs or whether - in the case of criminal proceedings in German courts – it merely means that the assistance of an interpreter may not be made dependent on an advance payment by the accused. ... ..... The object of the Convention is to secure human rights and fundamental freedoms against arbitrary State action and to place them under the protection of supranational law. ... It is not its purpose to go further and alter the national legal systems ... The list of procedural guarantees in Article 6 (art. 6) of the Convention shows that the intention was to enshrine rights of the citizen and duties of the State which ensure a fair trial. This obviously means that the accused (or person charged) should be able to call for the assistance of an interpreter if he does not understand or speak the language used in court and that such assistance should be in no way dependent on the question of costs. But it certainly does not mean that even a convicted person may not have the costs of interpretation awarded against him. A fair trial is guaranteed in this respect insofar as the accused must be assisted by the interpreter he needs. The question whether he may later be required to bear the costs is not of the same order as the problem of guaranteeing human rights and fundamental freedoms but, both in theoretical and practical terms, is of lesser moment. It cannot be assumed that the Convention is intended to provide a piecemeal solution of the question of costs in criminal proceedings. Nor does the consideration that a foreigner should not receive worse treatment in the matter of costs than a national, dictate the conclusion that permanent exemption from costs is necessarily implied by the object of the Convention ... The Convention would not have come appreciably nearer to achieving its aim by prohibiting a financial disadvantage of such a kind." On 1 July 1975, Mr. Koç applied to the Federal Constitutional Court (Bundesverfassungsgericht) which, eight days later, declined to hear the application on the ground that it did not offer sufficient prospects of success. 27. According to the payment vouchers (Kassenanweisungen), the fees paid to the interpreter amounted to DM 311.50 for the hearing on 4 December 1973, DM 510.50 for the hearing on 5 December and DM 112.50 for the hearing on 6 December - making a total of DM 934.50. 28. Nevertheless, the applicant was not served with a notice to pay the costs for which he was liable, including the interpretation costs, since it was noted that he had a wife and four children to support, that his income was modest and that there was thus no prospect of recovering the costs. For these reasons, the competent court official, acting in pursuance of Article 10 para. 1 of the Service Instructions of 28 February 1969 on Court Costs (Kostenverfügung), had decided of his own motion on 23 October 1975 not to assess the costs. His decision was not notified either to Mr. Koç or to Mr. Koç’s lawyer. A second decision to this effect was taken by the same official on 20 December 1977. This decision recorded that the applicant was living in Turkey that his address was unknown and that recovery of the costs, being doomed to failure, should be waived. Mr. Koç’s lawyer discovered the existence of the decision in April 1978 when he sought from the court a photocopy of the interpreter’s payment vouchers. 29. Before the Court, the Agent of the Government, with the agreement of the Minister of Justice for the Land of North-Rhine Westphalia made the following declaration: "... the compulsory collection of costs from the applicant Koç in pursuance of the judgment of 6 December 1973 by the Assize Court attached to the Aachen Regional Court, varied in part by the decision of 5 June 1975 by the Cologne Court of Appeal, will not be carried out in future; for the costs of such compulsory collection and the administrative costs would be out of proportion to the sum owed." The Agent specified that "the costs ... would not be collected even if the applicant were to return to the Federal Republic of Germany".