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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> LUEDICKE, BELKACEM AND KOÇ v. GERMANY - 6210/73;6877/75;7132/75 [1978] ECHR 5 (28 November 1978)
URL: http://www.bailii.org/eu/cases/ECHR/1978/5.html
Cite as: [1978] ECHR 5, (1980) 2 EHRR 149
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In the case of Luedicke, Belkacem and Koç,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and Rule 21 of the
Rules of Court, as a Chamber composed of the following judges:
Mr. G. WIARDA, President,
Mr. H. MOSLER,
Mrs. H. PEDERSEN,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. D. EVRIGENIS,
Mr. P.-H. TEITGEN,
Mr. G. LAGERGREN,
and Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,
Having deliberated in private on 26 May and 23 October 1978,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case of Luedicke, Belkacem and Koç was referred to the Court
by the Government of the Federal Republic of Germany ("the
Government") and the European Commission of Human Rights ("the
Commission"). The case originated in three applications against the
Federal Republic of Germany lodged with the Commission by
Mr. Gerhard W. Luedicke, Mr. Mohammed Belkacem and Mr. Arif Koç in
1973, 1974 and 1975 respectively. The Commission ordered the joinder
of these three applications on 4 October 1976.
2. Both the application of the Government, which referred to
Article 48 (art. 48) of the Convention, and the request of the
Commission, which relied on Articles 44 and 48, sub-paragraph (a)
(art. 44, art. 48-a), and to which was attached the report
provided for under Article 31 (art. 31), were lodged with the registry
of the Court within the period of three months laid down in
Articles 32 para. 1 and 47 ((art. 32-1, art. 47). The application was
lodged on 1 October 1977, the request on 10 October. Their purpose is
to obtain a decision from the Court as to whether or not the facts of
the case disclose a breach by the respondent State of its obligations
under Articles 6 para. 3 (e) and 14 (art. 6-3-e, art. 14) of the
Convention.
3. On 5 October, the President of the Court drew by lot, in the
presence of the Registrar, the names of five of the seven judges
called upon to sit as members of the Chamber; Mr. H. Mosler, the
elected judge of German nationality, and Mr. G. Balladore Pallieri,
the President of the Court, were ex officio members under Article 43
of the Convention (art. 43) and Rule 21 para. 3 (b) of the Rules of Court
respectively. The five judges thus designated were Mr. J. Cremona,
Mrs. H. Pedersen, Mr. D. Evrigenis, Mr. P.-H. Teitgen and
Mr. G. Lagergren (Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43). Mr. Balladore Pallieri assumed the office of
President of the Chamber in accordance with Rule 21 para. 5. Mr. Cremona,
who was subsequently prevented from taking part in the consideration
of the case, was replaced by the first substitute judge,
Mrs. Bindschedler-Robert.
On 21 November, Mr. Balladore Pallieri, acting in pursuance of
Rule 24 para. 4, granted himself exemption from sitting on the case. In
accordance with Rule 21 paras. 3 (b) and 5, Mr. Wiarda, the Vice-President
of the Court, became a full member of the Chamber and assumed the
office of President of the Chamber.
4. The President of the Chamber ascertained, through the Registrar,
the views of the Agent of the Government and the Delegates of the
Commission regarding the procedure to be followed. By an Order
of 17 October, the President of the Chamber decided that the
Government should file a memorial within a time-limit expiring
on 31 January 1978 and that the Delegates should be entitled to file a
memorial in reply within two months of receipt of the Government's
memorial.
5. The Government filed their memorial on 30 January 1978. The
Secretary to the Commission advised the Deputy Registrar on 17 April
that the Delegates had decided not to file a memorial in reply;
on 8 May, he communicated to the Registrar a note containing "the
applicants' observations on the question of the application of
Article 50 (art. 50) of the Convention" and Mr. Koç's observations on
the Government's suggestion that his case be severed from the other
two and be struck out of the Court's list.
6. After consulting, through the Deputy Registrar, the Agent of the
Government and the Delegates of the Commission, the President of the
Chamber decided by an Order of 11 March that the oral hearings should
open on 25 May.
7. The Chamber held a preparatory meeting on 25 May, immediately
before the opening of the hearings. At that meeting the Chamber,
granting a request presented by the Government, decided that their
Agent and counsel could plead in German at the hearings, the
Government undertaking, inter alia, responsibility for the
interpretation into French or English of their oral arguments or
statements (Rule 27 para. 2). At the same time, the Chamber took note of
the intention of the Commission's Delegates to be assisted during the
oral proceedings by Mr. Pawlik, the lawyer of one of the applicants;
it also authorised Mr. Pawlik to speak in German (Rules 29 para. 1 in fine
and 27 para. 3).
8. The oral hearings took place in public at the Human Rights
Building, Strasbourg, on 25 May.
There appeared before the Court:
- for the Government:
Mrs. I. Maier, Ministerialdirigentin at the Federal Ministry of
Justice, Agent,
Mr. H. Stöcker, Regierungsdirektor at the Federal Ministry of
Justice,
Mr. K. Miebach, Richter am Landgericht, Federal Ministry of Justice,
Advisers;
- for the Commission:
Mr. F. Ermacora, Principal Delegate,
Mr. S. Trechsel, Delegate,
Mr. G. Pawlik, lawyer for Mr. Koç, assisting the Delegates under
Rule 29 para. 1, second sentence.
The Court heard addresses by Mrs. Maier for the Government and by
Mr. Ermacora, Mr. Trechsel and Mr. Pawlik for the Commission, as well
as their replies to questions put by several judges.
9. On 10 July, the Agent of the Government supplemented in writing
her reply to one of the questions that had been put to her.
On 17 July, the Commission produced to the Court certain documents
referred to by the Principal Delegate at the hearings; these documents
were the subject of a letter, received on 16 August, from the Agent of
the Government.
AS TO THE FACTS
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.
I. The domestic law
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.
II. Facts relating to the individual applicants
1. Mr. Luedicke
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.
2. Mr. Belkacem
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.
3. Mr. Koç
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".
PROCEEDINGS BEFORE THE COMMISSION
30. In their applications, lodged respectively on 23 July 1973,
20 December 1974 and 28 July 1975, Mr. Luedicke, Mr. Belkacem and
Mr. Koç claimed to be victims of a violation of Article 6 para. 3 (e)
(art. 6-3-e) of the Convention in that they had been ordered by the
German courts to bear interpretation costs.
Mr. Luedicke and Mr. Belkacem also alleged discrimination by reason
of the fact that a foreigner not speaking German was in a less
favourable position than a German person.
31. The Commission declared Mr. Luedicke's application admissible on
11 March 1976 and the applications of Mr. Belkacem and Mr. Koç
admissible on 4 October following.
In its report of 18 May 1977, the Commission expressed the opinion:
- unanimously, that the decisions concerning the interpreter's costs
in the applicants' cases were in breach of Article 6 para. 3 (e)
(art. 6-3-e) of the Convention;
- by twelve votes to one, that it was not necessary to pursue its
examination of the case under Article 14 (art. 14).
The report contains one separate opinion.
CONCLUDING SUBMISSIONS MADE TO THE COURT
32. In their memorial of 30 January 1978, the Government
- suggested that the Court, acting in pursuance of Rule 47 para. 2 of
the Rules of Court, strike the case out of its list insofar as the
applicant Koç was concerned;
- requested the Court to find that the Federal Republic of Germany
has not violated the Convention to the detriment of the applicants
Luedicke and Belkacem.
At the hearing on 25 May, the Government specified that this latter
request applied also to Mr. Koç if the Court did not comply with their
above-mentioned suggestion.
AS TO THE LAW
I. On the suggestion to sever Mr. Koç's case and to strike it out of
the list
33. In their application bringing the case before the Court, the
Government stated: "As far as the applicant Koç is concerned there
arises the further question whether he is a 'victim' within the
meaning of Article 25 para. 1 (art. 25-1), first sentence, of the
Convention since in his case the competent authority abstained from
recovering the court fees (including interpreter's fees) because there
was no prospect of success." They further stated that they reserved
the right to apply in due course for the case of Mr. Koç "to be dealt
with in separate proceedings and in accordance with the provisions of
Rule 47 para. 2 of the Rules of Court".
Thus, in their memorial, the Government suggested that the Court
sever the proceedings concerning Mr. Koç from the proceedings regarding
the other applicants and strike the case out of the list as far as
Mr. Koç was concerned. With the agreement of the Minister of Justice for
the Land of North-Rhine Westphalia, they declared that Mr. Koç would
not be asked to pay the costs even if he returned to the Federal
Republic of Germany, because "the costs of such compulsory collection
and the administrative costs would be out of proportion to the sum
owed". In their submission, in view of this change in the legal
situation to his advantage, there was no longer any interest for the
applicant in the action being pursued, especially since the point of
law raised by his application was also the subject-matter of the
proceedings regarding Mr. Luedicke and Mr. Belkacem.
Referring to the possible application of Article 50 (art. 50) of the
Convention, the Agent stressed at the hearing that, should the Court
rule against them, the Government would fully comply with their
obligations under the Convention without a further decision under
Article 50 (art. 50) being necessary. She specified that this
statement applied also to the necessary ancillary costs incurred by
Mr. Koç.
34. The Delegates advised the Court on 8 May 1978, that, acting on
instructions unanimously decided upon by the Commission, they were
opposed to the Government's suggestion. At the same time, they
communicated to the Court a note indicating, amongst other things,
that Mr. Koç took issue with the said suggestion. According to Mr. Koç,
his interest to have pursued the examination of his complaints
remained unchanged since "the effect of the decision of 5 June 1975 of
the Cologne Court of Appeal is being upheld".
At the hearing on 25 May, in reply to a question from the President
of the Chamber, the Principal Delegate at first stated that the
Commission accepted Mr. Koç's opinion. However, having heard the
above-mentioned statements by the Agent, he acknowledged that "there
may ... be good reasons for the Court not to continue its examination
of the case at the present stage": the Delegates considered that there
was no general interest militating in favour of pursuing such
examination and they also took into account the indications given by
the Agent with regard to the application of Article 50 (art. 50).
35. Consequently, the Court has to determine whether the conditions
required for severing Mr. Koç's case from the two others and for
striking it out of the list are fulfilled.
Under the terms of Rule 47 para. 1 of the Rules of Court, when the Party
which has brought the case before the Court notifies the Registrar of
its intention not to proceed with the case, the Court "shall, after
having obtained the opinion of the Commission, decide whether or not
it is appropriate to approve the discontinuance and accordingly to
strike the case out of its list". In this connection, the Court notes
that the Government - the sole Party in the present proceedings (see
Rule 1 para. (h)) - did not express a wish not to proceed with the case.
In fact, the Government's suggestion referred not to paragraph 1 but
to paragraph 2 of Rule 47. Paragraph 2 empowers the Court to strike
out of the list a case referred to it by the Commission, but only when
"informed of a friendly settlement, arrangement or other fact of a
kind to provide a solution of the matter". Since the instant case was
brought before it by both the Government and the Commission, the Court
- even if the Government's suggestion could be considered as a notice
of discontinuance - can strike the case out of the list as concerns
Mr. Koç only in the event of the conditions in paragraph 2 of Rule 47
being satisfied. The Court must therefore establish whether in
Mr. Koç's case there exists a friendly settlement, arrangement or
other fact of a kind to provide a solution of the matter.
36. The Court takes formal notice of the Government's declaration
that "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", "even if the applicant were to return to the Federal
Republic of Germany" (see paragraph 29 above). The Court likewise
takes note of what the Agent stated in connection with the possible
application of Article 50 (art. 50) of the Convention as concerns
Mr. Koç's necessary ancillary costs.
Nevertheless, the Government's declaration, being a unilateral act,
cannot in the Court's view amount to a "friendly settlement" or an
"arrangement" within the meaning of Rule 47 para. 2. Neither can it be
regarded as a "fact of a kind to provide a solution of the matter".
In point of fact, the waiver of recovery of the sums due by Mr. Koç is
not prompted by reasons deriving from Article 6 para. 3 (e) (art. 6-3-e)
of the Convention; the waiver results simply from the practical
difficulties and cost of recovery, as well as from consideration of
the applicant's family and financial situation. Furthermore, the
waiver of recovery does not remove the applicant's legal interest to
have established the incompatibility with the Convention of the
Cologne Court of Appeal's judgment ordering him to pay the
interpretation costs. The Government do not, by their above-mentioned
declaration, admit that the German law and its application to Mr. Koç
contravene Article 6 para. 3 (e) (art. 6-3-e). On the contrary, they
maintain that the law and its application comply with the Convention.
Since Mr. Koç has requested reimbursement of the ancillary costs
incurred by him in the present proceedings, the retention of his case
on the Court's list is also justified for the purposes of the possible
application of Article 50 (art. 50) in his respect.
Retaining the case in its entirety on the list will facilitate
providing the Government, who are seeking an interpretation of the
Convention by the Court, with an answer of the completeness they are
entitled to expect on account, notably, of the conflict of opinion as
to the meaning of the provisions in issue; as the Delegates of the
Commission rightly emphasised, this conflict lies at the root of the
whole case.
37. Consequently, the Court decides not to sever Mr. Koç's case from
the two others and not to strike it out of the list.
II. On the alleged violation of Article 6 para. 3 (e) (art. 6-3-e)
38. In the applicants' submission, the obligation to pay the
interpretation costs, as imposed on them by the Bielefeld and Berlin
Regional Courts and Cologne Court of Appeal, is in breach of
Article 6 para. 3 (e) (art. 6-3-e) of the Convention which provides:
"Everyone charged with a criminal offence has the following minimum
rights:
.....
(e) to have the free assistance of an interpreter if he cannot
understand or speak the language used in court."
In its report, the Commission expressed the unanimous opinion that
the decisions challenged by the applicants were in breach of
Article 6 para. 3 (e) (art. 6-3-e). The Commission takes this provision to
mean that every accused person who "cannot understand or speak the
language used in court" must be granted the free assistance of an
interpreter and may not have payment of the resulting costs
subsequently claimed back from him.
The Government contest the correctness of this opinion. They submit
that while Article 6 para. 3 (e) (art. 6-3-e) exempts the accused from
paying in advance for the expenses incurred by using an interpreter,
it does not prevent him from being made to bear such expenses once he
has been convicted.
39. For the purposes of interpreting Article 6 para. 3 (e) (art. 6-3-e),
the Court will be guided, as also were the Government and the
Commission, by Articles 31 to 33 of the Vienna Convention of
23 May 1969 on the Law of Treaties (see the Golder judgment of
21 February 1975, Series A no. 18, p. 14, para. 29). In order to decide
the issue arising in the present proceedings, the Court will therefore
seek to ascertain "the ordinary meaning to be given to the terms" of
Article 6 para. 3 (e) (art. 6-3-e) "in their context and in the light of
its object and purpose" (Article 31 para. 1 of the Vienna Convention).
40. The Court finds, as did the Commission, that the terms
"gratuitement"/"free" in Article 6 para. 3 (e) (art. 6-3-e) have in
themselves a clear and determinate meaning. In French, "gratuitement"
signifies "d'une manière gratuite, qu'on donne pour rien, sans
rétribution" (Littré, Dictionnaire de la langue française), "dont on
jouit sans payer" (Hatzfeld et Darmesteter, Dictionnaire général de la
langue française), "à titre gratuit, sans avoir rien à payer", the
opposite of "à titre onéreux" (Larousse, Dictionnaire de la langue
française), "d'une manière gratuite; sans rétribution, sans
contrepartie" (Robert, Dictionnaire alphabétique et analogique de la
langue française). Similarly, in English, "free" means "without
payment, gratuitous" (Shorter Oxford Dictionary), "not costing or
charging anything, given or furnished without cost or payment"
(Webster's Third New International Dictionary).
Consequently, the Court cannot but attribute to the terms
"gratuitement" and "free" the unqualified meaning they ordinarily have
in both of the Court's official languages: these terms denote neither
a conditional remission, nor a temporary exemption, nor a suspension,
but a once and for all exemption or exoneration. It nevertheless
remains to be determined whether, as the Government contend, the
context as well as the object and purpose of the provision in issue
negative the literal interpretation.
41. According to the Government, all the rights enumerated in
Article 6 para. 3 (art. 6-3) are concerned with criminal proceedings and
become devoid of substance once those proceedings, the fair conduct of
which they are to guarantee, have been terminated by a final and
binding judgment. The Government submitted that what are involved are
certain minimum rights which - in specifying the content of the right
to a fair trial as enshrined in Article 6 para. 1 (art. 6-1) - are granted
only to an accused ("everyone charged with a criminal offence", "tout
accusé"). The Government likewise place reliance on the presumption of
innocence, which is enunciated in Article 6 para. 2 (art. 6-2) and which
is rebutted on the final and binding conviction of the accused.
Their reasoning is that the various guarantees of a fair trial,
because they are intended to enable the accused to preserve the
presumption of innocence, lapse at the same time as that presumption.
In the Government's submission, the costs of the proceedings
constitute a consequence of the conviction and accordingly fall
entirely outside the ambit of Article 6 (art. 6).
42. The Court notes that, for the purpose of ensuring a fair trial,
paragraph 3 of Article 6 (art. 6-3) enumerates certain rights
("minimum rights"/"notamment") accorded to the accused (a person
"charged with a criminal offence"). Nonetheless, it does not thereby
follow, as far as sub-paragraph (e) is concerned, that the accused
person may be required to pay the interpretation costs once he has
been convicted. To read Article 6 para. 3 (e) (art. 6-3-e) as allowing the
domestic courts to make a convicted person bear these costs would
amount to limiting in time the benefit of the Article and in practice,
as was rightly emphasised by the Delegates of the Commission, to
denying that benefit to any accused person who is eventually
convicted. Such an interpretation would deprive Article 6 para. 3 (e)
(art. 6-3-e) of much of its effect, for it would leave in existence
the disadvantages that an accused who does not understand or speak the
language used in court suffers as compared with an accused who is
familiar with that language - these being the disadvantages that
Article 6 para. 3 (e) (art. 6-3-e) is specifically designed to attenuate.
Furthermore, it cannot be excluded that the obligation for a
convicted person to pay interpretation costs may have repercussions on
the exercise of his right to a fair trial as safeguarded by Article 6
(art. 6) (see the Golder judgment of 21 February 1975, Series A
no. 18, p 18, para. 36), even if, as in the Federal Republic of Germany,
an interpreter is appointed as a matter of course to assist every
accused person who is not conversant with the language of the court.
Making such an appointment admittedly eliminates in principle the
serious drawbacks that would arise were an accused to defend himself
in person in a language he did not master or fully master rather than
incurring additional costs. Nevertheless, as was pointed out by the
Delegates of the Commission, the risk remains that in some borderline
cases the appointment or not of an interpreter might depend on the
attitude taken by the accused, which might in turn be influenced by
the fear of financial consequences.
Hence, it would run counter not only to the ordinary meaning
of the terms "free"/"gratuitement" but also to the object and purpose
of Article 6 (art. 6), and in particular of paragraph 3 (e)
(art. 6-3-e) thereof, if this latter paragraph were to be reduced to
the guarantee of a right to provisional exemption from payment - not
preventing the domestic courts from making a convicted person bear the
interpretation costs -, since the right to a fair trial which
Article 6 (art. 6) seeks to safeguard would itself be adversely
affected.
43. The Government derive from other sub-paragraphs of Article 6 para. 3
(art. 6-3) certain further arguments which, they contend, support
their case.
They rely on sub-paragraph (c) (art. 6-3-c) which grants to everyone
charged with a criminal offence the right "to defend himself in person
or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when
the interests of justice so require". The Government likewise invoke
sub-paragraph (d) (art. 6-3-d), according to which every accused has
the right "to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him".
The Government maintain that the words "free"/"gratuitement"
employed in the two sub-paragraphs (c) and (e) (art. 6-3-c,
art. 6-3-e) must have the same meaning in both provisions.
In their submission, there is nothing to justify saying that in
sub-paragraph (c) (art. 6-3-c) these words permanently exempt the
accused, subsequent to his conviction, from having to pay for legal
assistance given in the circumstances specified in that sub-paragraph.
Furthermore, for the Government, the three sub-paragraphs (c), (d)
and (e) of Article 6 para. 3 (art. 6-3-c, art. 6-3-d, art. 6-3-e) are
distinguishable from the two preceding sub-paragraphs by reason of the
fact that financial consequences are entailed in the exercise of the
rights they set forth; it would be wrong to suppose, the Government
argue, that the Convention should have established an arbitrary
difference between the financial implications of each of the said
rights by granting the accused once and for all exemption from payment
of interpretation costs.
44. The Court does not accept this argument. The Court is not called
on in the current proceedings to interpret sub-paragraphs (c) and (d)
of Article 6 para. 3 (art. 6-3-c, art. 6-3-d), which are not concerned
with the same situation as sub-paragraph (e) (art. 6-3-e).
Accordingly, the Court does not intend to establish whether and for
which reasons and under what conditions the expenses associated with
these provisions may be awarded against or left to be borne by the
accused after his conviction.
The Court restricts itself to the following remark: whatever the
doubts that might be prompted by the interpretation of sub-paragraphs (c)
and (d) (art. 6-3-c, art. 6-3-d), such doubts cannot be relied on
in opposition to the clear meaning of the adjective "free" in
sub-paragraph (e) (art. 6-3-e).
45. The Government assert in the last place that it would not be
logical to exempt a convicted person from payment of the
interpretation costs incurred during the trial and not from payment of
any costs necessitated by the interpretation of the information
referred to in sub-paragraph (a) (art. 6-3-a), according to which
"everyone charged with a criminal offence has the (right) ... to be
informed promptly, in a language which he understands and in detail,
of the nature and cause of the accusation against him".
This argument really rests on the supposition that the right to the
free assistance of an interpreter, as guaranteed by sub-paragraph (e)
of paragraph 3 (art. 6-3-e), covers only the costs resulting from the
interpretation at the trial hearing. However, it does not at first
sight appear excluded that Article 6 para. 3 (e) (art. 6-3-e) applies also
to the costs incurred by the interpretation of the accusation
mentioned in sub-paragraph (a) (art. 6-3-a), as well as to the costs
incurred by the interpretation of the reasons for arrest and of any
charge brought - matters of which everyone who is arrested must, under
Article 5 para. 2 (art. 5-2), be informed "in a language which he
understands". The Court will return to this issue (at paragraphs 48
and 49 below) when determining whether the right stated in
Article 6 para. 3 (e) (art. 6-3-e) extends to the costs that the German
courts awarded against the applicants.
46. The Court thus finds that the ordinary meaning of the terms
"gratuitement" and "free" in Article 6 para. 3 (e) (art. 6-3-e) is not
contradicted by the context of the sub-paragraph and is confirmed by
the object and purpose of Article 6 (art. 6). The Court concludes that
the right protected by Article 6 para. 3 (e) (art. 6-3-e) entails, for
anyone who cannot speak or understand the language used in court, the
right to receive the free assistance of an interpreter, without
subsequently having claimed back from him payment of the costs thereby
incurred.
47. It remains to be determined if and to what extent the contested
decisions of the German courts are compatible with Article 6 para. 3 (e)
(art. 6-3-e) so interpreted.
48. Before the Court a difference of opinion emerged between the
Government and the Commission as to which costs come within the scope
of Article 6 para. 3 (e) (art. 6-3-e). In the Government's submission,
Article 6 para. 3 (e) (art. 6-3-e) "unambiguously and expressly settles
the assistance of an interpreter at the oral hearing (audience)" but
does not apply to other interpretation costs.
The Government's contention, the correctness of which is contested
by the Delegates, cannot be accepted by the Court. Article 6 para. 3 (e)
(art. 6-3-e) does not state that every accused person has the right to
receive the free assistance of an interpreter at the oral hearing (à
l'audience); it states that this right is accorded to him "if he
cannot understand or speak the language used in court" ("s'il ne
comprend pas ou ne parle pas la langue employée à l'audience").
As was pointed out by the Delegates, the latter words do no more than
indicate the conditions for the granting of the free assistance of an
interpreter. Furthermore, the English text "used in court", being
wider than the French expression "employée à l'audience" (literally
translated as "used at the hearing"), furnishes an additional argument
in this respect.
Construed in the context of the right to a fair trial guaranteed by
Article 6, paragraph 3 (e) (art. 6-3-e) signifies that an accused who
cannot understand or speak the language used in court has the right to
the free assistance of an interpreter for the translation or
interpretation of all those documents or statements in the proceedings
instituted against him which it is necessary for him to understand in
order to have the benefit of a fair trial.
49. In this connection, certain differences exist between the three
cases.
Mr. Luedicke had to pay DM 225.40 by way of interpretation costs,
including DM 154.60 in respect of the oral hearing (see paragraph 16
above). The representatives appearing before the Court did not provide
any details as to the nature of the remaining balance; accordingly,
the Court cannot conclude that this balance falls outside the scope of
the guarantee in Article 6 para. 3 (e) (art. 6-3-e).
As regards Mr. Koç, the interpretation costs are exclusively
attributed to three hearings before the Assize Court attached to the
Aachen Regional Court and amount respectively to DM 311.50
and DM 510.50 and DM 112.50 (see paragraph 27 above). Therefore,
these costs indisputably come within the ambit of Article 6 para. 3 (e)
(art. 6-3-e).
The interpretation costs awarded against Mr. Belkacem result from
four distinct procedural steps, namely, the accused's appearance
before the judge (DM 33.25), the review of his detention on remand
(DM 67.60), the translation of the indictment (DM 90.20) and the trial
hearing (DM 130.90) (see paragraph 22 above). In the Court's opinion,
Article 6 para. 3 (e) (art. 6-3-e) covers all these costs.
50. Accordingly, the Court concludes that the contested decisions of
the German courts were in breach of Article 6 para. 3 (e) (art. 6-3-e) of
the Convention.
III. On the alleged violation of Article 14 (art. 14)
51. In their applications to the Commission, Mr. Luedicke and
Mr. Belkacem alleged discrimination in that a foreigner not conversant
with German may, on conviction, have to pay interpretation costs and
thereby to bear a heavier financial liability than a national of the
respondent State.
According to Mr. Luedicke, such treatment infringes Article 14
(art. 14) of the Convention, which provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such
as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority,
property, birth or other status."
52. In its decisions of 11 March 1976 (Mr. Luedicke) and
4 October 1976 (Mr. Belkacem and Mr. Koç) on admissibility, the
Commission expressed the view that the applications "raise(d)
questions ... under Article 14 (art. 14) with regard to the position
of foreigners".
Nonetheless, in its report of 18 May 1977, the Commission stated
that it had not deemed it necessary to pursue its examination of the
case under this provision, since it followed from its conclusions
regarding Article 6 para. 3 (e) (art. 6-3-e) that the payment of
interpretation costs should not have been required of any individual.
The Principal Delegate had declared in a separate opinion that he did
not agree with this view.
Finally, in its request of 10 October 1977 bringing the case before
the Court, the Commission asked the Court "to decide on the question
whether the requirement that a convicted person should pay
interpreter's fees ... also constitutes a breach of Article 14
in conjunction with Article 6 para. 3 (e) (art. 14+6-3-e)".
In the Government's submission, the applicants have not suffered any
discriminatory treatment in breach of Article 14 (art. 14).
53. The Court, concurring with the Commission, considers that in the
particular circumstances it is not necessary also to examine the case
under Article 14 (art. 14). In the present case, only Article 6 para. 3 (e)
(art. 6-3-e) is relevant. In order to secure the right to a fair
trial, Article 6 para. 3 (e) (art. 6-3-e) seeks to prevent any inequality
between an accused person who is not conversant with the language used
in court and an accused person who does speak and understand that
language; hence, it is to be regarded as a particular rule in relation
to the general rule embodied in Articles 6 para. 1 and 14 (art. 14+6-1)
taken together. Accordingly, there is no scope for the application of
the two latter provisions.
IV. On the application of Article 50 (art. 50)
54. Under Article 50 (art. 50) of the Convention, if the Court finds
"that a decision or a measure taken" by any authority of a Contracting
State "is completely or partially in conflict with the obligations
arising from the ... Convention, and if the internal law of the said
(State) allows only partial reparation to be made for the consequences
of this decision or measure", the Court "shall, if necessary, afford
just satisfaction to the injured party".
The Rules of Court specify that when the Court "finds that there is
a breach of the Convention, it shall give in the same judgment a
decision on the application of Article 50 (art. 50) of the Convention
if that question, after being raised under Rule 47 bis, is ready for
decision; if the question is not ready for decision, the (Court) shall
reserve it in whole or in part and shall fix the further procedure"
(Rule 50 para. 3, first sentence).
55. On 8 May 1978, the Delegates transmitted to the Court the
applicants' observations on the application of Article 50
(art. 50) of the Convention. It emerges from these observations that
Mr. Luedicke is asking for redress in the form of "reimbursement of
the interpreter's fees paid by him and of any ancillary expenses
incurred by him in these proceedings". Mr. Belkacem indicated that up
till now he has not had to pay the interpretation costs and stated
that he did not appear to have suffered any loss. He added that "the
costs, including travel expenses, caused by his representation in
these proceedings constitute a loss only in the broader sense"; they
were also said to be "an additional consequence of the German court
decisions". Mr. Koç specified that, in view of the declaration by the
Agent of the Government to the effect that recovery of the costs would
be waived, he refrained from claiming specific reparation; however, in
the event of the Court agreeing with the Commission's conclusions, his
request to the Court is that "the Federal Republic of Germany should
be ordered to pay the ancillary costs incurred in the representation
of the applicant in the present proceedings".
56. At the hearing on 25 May 1978, the Agent of the Government
declared that "the Federal Republic of Germany would fully comply with
its obligations under the Convention if the Court came to the
conclusion that (there had been) a violation of the Convention,
without it being necessary to make a further decision under Article 50
(art. 50) to ensure the execution of the Court's judgment". She
indicated that the Government would not only table a Bill in the
Bundestag to amend the law currently in force but also take steps to
remedy any other disadvantages that the applicants might have suffered
in the context of these proceedings. The matter of the three
applicants' necessary ancillary expenses, she added, would be settled
with them by the competent authorities in a fair manner.
The Commission's Delegates stated that as a result of the
Government's attitude, which they welcomed, they did not consider it
necessary to make any observations in this connection.
57. Taking formal notice of the declaration made by the Agent of the
Government, and noting the Delegates' statement, the Court considers
that the question of the application of Article 50 (art. 50) of the
Convention is ready for decision as regards the interpretation costs
paid by Mr. Luedicke but not as regards the applicants' other claims
which they have not for the moment quantified. It is therefore
necessary to reserve the question as regards those claims and to fix
the further procedure, taking due account of the eventuality
contemplated in Rule 50 para. 5 of the Rules of Court.
FOR THESE REASONS, THE COURT
1. decides unanimously not to strike the case out of its list as far
as the applicant Koç is concerned;
2. holds unanimously that there has been breach of Article 6 para. 3 (e)
(art. 6-3-e) of the Convention;
3. holds unanimously that it is not necessary also to examine the
case under Article 14 (art. 14);
4. holds unanimously that the Federal Republic of Germany must
reimburse Mr. Luedicke for the interpretation costs that he was
obliged to pay;
5. holds unanimously that the question of the application of
Article 50 (art. 50) is not ready for decision as regards the
applicants' other claims;
accordingly,
(a) reserves the said question in relation to those claims;
(b) invites those appearing before the Court to notify it, within
three months from the delivery of this judgment, of any settlement at
which the Government and the applicants may have arrived in connection
therewith;
(c) reserves the further procedure to be followed on this question.
Done in French and in English, the French text being authentic, at
the Human Rights Building, Strasbourg, this twenty-eighth day of
November, one thousand nine hundred and seventy-eight.
Signed: Gérard J. WIARDA
President
Signed: Marc-André EISSEN
Registrar
Judges Mosler and Lagergren have annexed their separate opinions to
the present judgment, in accordance with Article 51 para. 2 (art. 51-2) of
the Convention and Rule 50 para. 2 of the Rules of Court.
Initialled: G. J. W.
Initialled: M.-A. E.
SEPARATE OPINION OF JUDGE MOSLER
(Translation)
I agree with the judgment in its entirety save only for one of the
grounds that led the Chamber to retain Mr. Koç's case on its list.
Since this decision is justified by reasons other than the one which I
would like to question, I nonetheless arrive at the same result.
In the second sub-paragraph of paragraph 36 of the judgment, the
Chamber rightly states that the Government's declaration to the effect
that the compulsory collection of costs will not be carried out does
not constitute a "fact of a kind to provide a solution of the matter".
The Chamber concludes that it is not empowered by Rule 47 para. 2 of the
Rules of Court to strike the case out of the list.
The Government made this declaration during the oral hearings before
the Court (see paragraph 29 of the judgment). The direct and principal
consequence of the Cologne Court of Appeal's judgment of 5 June 1975
of which Mr. Koç complained in his application is thus eliminated.
However, Mr. Koç's legal interest to continue the proceedings before
the Court subsists since there may be consequences which that
declaration has not eliminated and which would give rise to an award
of just satisfaction under Article 50 (art. 50) of the Convention.
This ground for retaining the case on the list is also stressed by the
Chamber (at the end of the second sub-paragraph of paragraph 36) but
its main reason is that the declaration would not remove the
applicant's legal interest to have established the incompatibility
with the Convention of the Cologne Court of Appeal's judgment ordering
him to pay the interpretation costs. In fact, the Government maintain
that the German law and its application by the German courts to
Mr. Koç comply with the Convention. As the judgment notes, the
declaration is not prompted by reasons deriving from Article 6 para. 3 (e)
(art. 6-3-e) of the Convention.
This reasoning appears to me to imply that an individual applying to
the Commission is entitled not only to the cancellation of the act
which constitutes the violation with respect to him and, if necessary,
to an award of just satisfaction but also to a decision by the Court
as to whether the law and the judicial decisions giving rise to the
violation are compatible with the Convention. Moreover, the wording of
the judgment seems to me to indicate that the reason why a Government
cancels the act challenged in an application is a legally significant
fact.
Everyone admits that Article 25 (art. 25) of the Convention does not
give individuals a right to attack a Contracting Party's legislation.
Each applicant must claim that there has been a violation with repect
to him. If the act constituting the violation is cancelled during the
proceedings before one or other of the Convention institutions, the
application becomes without object provided that the applicant has not
suffered any prejudice other than the direct result of that act.
I do not consider that Article 25 (art. 25) can be interpreted as
conferring on an applicant a legal interest to have established in his
particular case the incompatibility with the Convention of either a
State's law or a judgment of a national court founded on that law,
unless such a finding is necessary in order to decide whether there is
a violation of the Convention in the applicant's specific case.
Since this last condition is satisfied on the present occasion, the
Court must give a decision on Mr. Koç's case.
I have not disregarded the fact that the judgment limits the
applicant's legal interest to his particular case. However, the
reasoning is, to say the least, ambiguous. If it were taken to have
the meaning which I have just given to it, I would not be in agreement
with the consequences.
SEPARATE OPINION OF JUDGE LAGERGREN
I associate myself with the judgment but would like to state the
following.
In the course of the proceedings much discussion has been devoted
to the interpretation of sub-paragraph (c) of Article 6 para. 3
(art. 6-3-c) of the Convention. Taken on its own, the term "free" must
necessarily have the same unqualified meaning in sub-paragraphs (c)
and (e) of Article 6 para. 3 (art. 6-3-c, art. 6-3-e). In my opinion, it
then follows from the wording of sub-paragraph (c) (art. 6-3-c) that
the accused, subsequent to his conviction, must be exempted from
having to pay for the legal assistance granted to him, at least for
such time as he has not sufficient means to pay for it. If a higher
court or authority finds on appeal that legal assistance was not in
fact required in the interests of justice, the individual concerned
should not be obliged to pay for such assistance, even if he acquires
sufficient means.