European Court of Human Rights

On 2 November, the Registrar, on the President’s instructions, requested the Commission and the Government to produce several documents; these were received on 5, 22 and 23 November.

There appeared before the Court:

- for the Government:

       Mrs. I. MAIER, Ministerialdirigentin

                            at the Federal Ministry of Justice,                               Agent,

       Mr. P. RIESS, Ministerialrat

                            at the Federal Ministry of Justice,

       Mr. W. STILLER, Regierungsdirektor

                            at the Federal Ministry of Justice,                           Advisers;

- for the Commission:

       Mr. J.A. FROWEIN,                                                                    Delegate,

       Mr. N. WINGERTER, the applicant’s lawyer

                            before the Commission, assisting the Delegate (Rule 29      

                            para. 1, second sentence, of the Rules of Court).

The Court heard addresses by Mrs. Maier and Mr. Riess for the Government and by Mr. Frowein and Mr. Wingerter for the Commission, as well as their replies to its questions. On 26 November, in response to a request which he had made on the instructions of the President, the Registrar received certain documents from the Commission.

In accordance with the Orders and directions of the President, the registry received the following documents on this issue:

- on 20 January 1983, the comments of the Government;

- on 9 and 10 February 1983, the observations of the Delegate of the Commission and, through him, the observations of the applicant.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

These proceedings are not here in issue.

Mr. Pakelli was arrested on 7 May on suspicion of having committed a further offence against the Narcotics Act; on 4 September, he was granted the assistance of an officially appointed lawyer, namely Mr. Wingerter, of Heilbronn.

On 3O April, the court sentenced Mr. Pakelli to two years’ and three months’ imprisonment for an offence against the Narcotics Act and for tax evasion (Steuerhinterziehung): it was found to be proved that in the spring of 1972 the accused had illegally imported into Germany sixteen kilograms of cannabis resin of Turkish origin, hidden in his car.

Mr. Pakelli was released on 10 August 1976 and returned to Turkey.

On 22 October, the Federal public prosecutor (Generalbundesanwalt) moved that the appeal be held inadmissible on the ground that it had been filed by a defence counsel who, on his own admission, was not entitled to represent the applicant.

On 19 November, Mr. Rauschenbusch applied for leave to proceed out of time (Wiedereinsetzung in den vorigen Stand) in order to lodge a fresh appeal, which appeal he in fact filed at the same moment. On 21 December 1976, the Federal Court (Bundesgerichtshof) allowed the application; it had first sought the opinion of the public prosecutor who, without giving reasons, had indicated that he was in favour of such a course.

On 13 January 1977, the Regional Court granted Mr. Rauschenbusch’s request of 19 November 1976 to be appointed official defence counsel to file the memorial setting out the grounds of appeal; two weeks later it relieved Mr. Wingerter of his duties.

On 20 April, the Federal public prosecutor invited the above-mentioned office to comment on the complaints that had been made; in his view, it was at least doubtful whether the appeal was inadmissible de plano.

On 12 August, the Heilbronn public prosecutor’s office filed its supplementary observations (weitere Gegenerklaerung), dated 1 August; it sent a copy to Mr. Rauschenbusch. In accordance with the practice in such matters (Instruction no. 162 of the Instructions on Criminal Procedure and Administrative Fines Procedure - Richtlinien für das Strafverfahren und das Bussgeldverfahren), the observations reproduced for each complaint the relevant documents in the case-file, in particular the requests made by the applicant’s lawyer during the trial and the decisions taken by the Regional Court thereon. As regards Article 146 of the Code of Criminal Procedure, the public prosecutor’s office referred to its earlier observations, including those of 14 March.

The President of the 1st Criminal Chamber (Strafsenat) of the Federal Court refused the application on the following day. In his view, an accused (Angeklagter) who was at liberty was not entitled to such an appointment for hearings in an appeal on a point of law; there was no legal requirement at that stage for him either to appear in person or to be represented by a lawyer (Article 350 paras. 2 and 3 of the Code of Criminal Procedure; see paragraph 22 below). As regards compliance with procedural rules (verfahrensrechtlich), an appeal court (Revisionsgericht) would examine the impugned decision on the basis of the written grounds of appeal; as regards any substantive complaints (bei sachlichrechtlicher Beanstandung), it would affect of its own motion a review that was not subject to any limitations. Furthermore, on this occasion neither the facts of the case nor the legal issues it raised justified the appointment requested.

In the objections (Gegenvorstellungen) he raised on 7 November 1977, Mr. Rauschenbusch cited a judgment of 19 October 1977 of the Federal Constitutional Court (see paragraph 22 below), holding that, in addition to the cases provided for by law, legal aid had to be granted for hearings in appeals on a point of law in "serious" ("schwerwiegend") cases if the person concerned was unable to pay a lawyer of his own choosing. And, he submitted, Mr. Pakelli was in such a situation, for a final conviction would lead to his expulsion. Mr. Rauschenbusch asked the Federal Court to indicate whether he should supply particulars of the applicant’s assets in order to substantiate (glaubhaft machen) the latter’s lack of means. According to Mr. Rauschenbusch, Mr. Pakelli was obviously (offensichtlich) not in a position to pay a lawyer. He had come to the Federal Republic as a migrant worker and had returned to Turkey after spending a long (laengeren) period in Heilbronn prison. It was evident that he had no savings.

Mr. Rauschenbusch requested that, if need be, the matter be referred to the Chamber for decision.

On 10 November, the President of the 1st Criminal Chamber of the Federal Court confirmed his decision of 25 October refusing the application; he took the view that the above-mentioned judgment of 19 October 1977 did not concern a case that was comparable to the applicant’s.

The judgment held firstly that the appeal was admissible: Article 146 of the Code of Criminal Procedure did not prevent Mr. Rauschenbusch from representing Mr. Pakelli before the Federal Court. On the other hand, that Article had not been complied with at first instance since Mr. Wingerter had previously defended the applicant’s accomplice. However, the Federal Court, referring to a judgment of its 3rd Criminal Chamber (see paragraph 26 below), added that an appeal on a point of law based on that Article could succeed only if the representation of several accused by one and the same lawyer proved to be really incompatible, in the circumstances of the case, with the duties of the defence. And on this occasion it had not been established that there was any conflict of interests.

The Federal Court then rejected the remainder of the complaints: some were examined in detail and held to be without foundation and the others were considered more briefly and held to be manifestly ill-founded.

The judgment, which was ten pages in length, was served on Mr. Rauschenbusch on 21 December 1977.

Mr. Wingerter, who requested that legal aid be granted to the applicant, asked the Constitutional Court to indicate whether he should supply particulars of his client’s assets in order to substantiate (glaubhaft machen) the latter’s lack of means.

In a ruling given on 10 May 1978 by a panel of three judges, the Constitutional Court decided not to hear the appeal on the ground that it did not offer sufficient prospects of success. The Constitutional Court found nothing arbitrary in the decision of the President of the 1st Criminal Chamber of the Federal Court. Moreover, the case was not "serious", within the meaning of the above-mentioned judgment of 19 October 1977 (see paragraphs 16 above and 22 below). Finally, Mr. Pakelli could have remained in the Federal Republic of Germany and attended the hearing before the Federal Court, if need be with the assistance of an interpreter.

II. RELEVANT LEGISLATION

1. Officially appointed lawyers

- the trial at first instance is before the Court of Appeal (Oberlandesgericht) or the Regional Court;

- the accused is charged with an indictable offence (Verbrechen);

- the proceedings may result in the accused’s being prohibited from exercising a profession;

- the accused is deaf or dumb;

- the accused has been interned for at least three months by order or with the approval of a court and has not been released at least two weeks before the opening of the trial;

- the question arises whether the accused should be detained for mental examination;

- the case concerns preventive detention proceedings (Sicherungsverfahren);

- a decision has been taken prohibiting the previous defence counsel from taking part in the proceedings.

An appointment will also be made in other cases, either by the court of its own motion or at the accused’s request, if such a step appears necessary on account of the seriousness of the act in question, the factual or legal complexity of the case, or if it is obvious that the accused cannot conduct his own defence (Article 140 para. 2).

An accused who is at liberty may appear in person or be represented by a lawyer at the appeal hearing (Article 350 para. 2). According to the case-law of the Federal Court, defence counsel can be assigned to him only under Article 140 para. 2 (see paragraph 20 above), since Article 140 para. 1 does not apply to hearings in an appeal on a point of law (Entscheidungen des Bundesgerichtshofes in Strafsachen, vol. 19, pp. 258-263).

Furthermore, the Federal Constitutional Court has held that defence counsel is to be appointed by the court of its own motion and at the expense of the State in serious cases (schwerwiegende Fälle) if the accused cannot pay for a lawyer of his own choosing (Entscheidungen des Bundesverfassungsgerichts, vol. 46, pp. 202-213).

2. Hearings in appeals on points of law

- where it finds the appeal inadmissible (Article 349 para. 1 of the Code of Criminal Procedure);

- where, on a reasoned application by the public prosecutor’s office, the court considers unanimously that the appeal is manifestly ill-founded (Article 349 para. 2); and

- where the court finds unanimously that an appeal filed in the interests of the accused is well-founded (Article 349 para. 4).

In all other cases the court has to hold a hearing before taking its decision (Article 349 para. 5); before the Federal Court, there are hearings in only ten per cent of the appeals on points of law lodged in criminal cases.

When the public prosecutor’s office applies for an appeal to be rejected as manifestly ill-founded, it has to communicate its submissions and the reasons to the appellant; the latter may file a reply within two weeks (Article 349 para. 3).

3. "Common defence counsel" (gemeinschaftliche Verteidigung)

However, the Federal Court (3rd Criminal Chamber) held on 27 February and 13 October 1976 that an appeal on a point of law based on a violation of Article 146 could succeed only if recourse to a common defence counsel was in fact contrary to the interests of the defence (Entscheidungen des Bundesgerichtshofes in Strafsachen, vol. 26, pp. 291-298; vol. 27, pp. 22-24). The 1st Criminal Chamber followed these precedents in its judgment of 29 November 1977 in the present case (see paragraph 17 above). The Government stated that this interpretation has since been accepted by all the Criminal Chambers of the Federal Court.

PROCEEDINGS BEFORE THE COMMISSION

On 16 May 1980, the Commission granted Mr. Pakelli free legal aid on the basis of a declaration of means dated 9 September 1979 and confirmed by certificates from the competent authorities.

On 7 May 1981, the Commission declared the application admissible in so far as it related to the rejection of the applicant’s request that a lawyer be officially appointed for the hearing before the Federal Court; it declared the other complaints inadmissible on the ground of non-exhaustion of domestic remedies (Articles 26 and 27 para. 3 (art. 26, art. 27-3) of the Convention).

In its report of 12 December 1981 (Article 31), the Commission expressed the unanimous opinion that the applicant had been the victim of a violation of Article 6 para. 3 (c) (art. 6-3-c) and, by eleven votes to one, that it was not required to determine whether there had also been breach of the right to a fair trial, within the meaning of Article 6 para. 1 (art. 6-1).

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

AS TO THE LAW

It was not disputed that these provisions were applicable in the present case and the Court takes this point as established (see, mutatis mutandis, the Delcourt judgment of 17 January 1970, Series A no. 11, pp. 13-15, paras. 25 and 26, and the Artico judgment of 13 May 1980, Series A no. 37, pp. 15-18, paras. 31-38). However, as the Government rightly pointed out, the manner in which those paragraphs are to be applied depends on the special features of the proceedings involved (see the above-mentioned Delcourt judgment, ibid.).

I.  THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 3 (c) (art. 6-3-c)

"Everyone charged with a criminal offence has the following minimum rights:

 ...

(c) 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;

 ..."

Before the Commission, the Government argued that Article 6 para. 3 (c) (art. 6-3-c) did not require the grant of free legal assistance in the present case since Mr. Pakelli could have appeared in person at the Federal Court’s hearing. Although they did not dwell on this point before the Court, they repeated that the applicant could have presented his own case to the Federal Court.

Thus Mr. Pakelli, although authorised by German law to appear in person before the Federal Court, could claim such assistance to the extent that the conditions laid down by Article 6 para. 3 (c) (art. 6-3-c) were satisfied.

A. Absence of sufficient means to pay for legal assistance

The Commission considered that the Government were not entitled at this stage to challenge the applicant’s assertions. It pointed out firstly that under German law the grant of free legal assistance was not conditional on the indigence of the litigant in question; secondly, Mr. Rauschenbusch had offered before the hearings to supply a certificate of indigence (see paragraph 16 above), but the Federal Court did not accept this offer.

Admittedly, these particulars are not sufficient to prove beyond all doubt that the applicant was indigent at the relevant time; however, having regard to his offer to the Federal Court to prove his lack of means and in the absence of clear indications to the contrary, they lead the Court to regard the first of the two conditions contained in Article 6 para. 3 (c) (art. 6-3-c) as satisfied.

B. The interests of justice

In contesting this view, the Government made the following points. Mr. Pakelli had had a defence counsel during the written stage of the proceedings; as for the hearings, their object was circumscribed by the grounds of his appeal on points of law: since he was challenging the judgment of 30 April 1976 solely on account of alleged procedural errors, he could neither raise new complaints nor supplement his memorial setting out the grounds of appeal by referring to other questions of fact. Only legal arguments and submissions could have been put to the court at the hearings. The issues involved were not complicated and it could not be said that their determination would entail serious consequences, for the proceedings could not have led to any aggravation of the decision complained of. Moreover, Mr. Pakelli could have appeared in person. Finally, the Commission had misunderstood the role of the Federal public prosecutor’s office in appeals on a point of law. That role consisted of examining the grounds of appeal from a completely independent standpoint and, in particular, of ensuring that the law was uniformly applied and that case-law remained consistent; it was thus very similar to the role of the Procureur g{n{ral attached to the Belgian Court of Cassation (see the above-mentioned Delcourt judgment).

Again, as the Commission rightly pointed out, one of the complaints made related to the application of the new version of Article 146 of the Code of Criminal Procedure. Admittedly, the 3rd Criminal Chamber of the Federal Court had already decided, in 1976, that an appeal on a point of law based on this Article could succeed only if recourse to a common defence counsel had in fact been contrary to the interests of the defence (see paragraph 26 above). Moreover, Mr. Rauschenbusch did not contest this interpretation. However, he endeavoured to demonstrate that there had been a conflict of interests in the present case. In addition, it could be predicted that the judgment that the Federal Court was going to deliver would not be without importance for the development of case-law. The Government themselves stated that the case-law on this point has remained constant since the judgment of 29 November 1977 dismissing the applicant’s appeal; they recognised that oral argument on the interpretation of Article 146 would have been of some value.

This opportunity of refuting the public prosecutor’s office’s arguments should therefore have been made available to Mr. Pakelli at the hearings also. By refusing to provide him with a defence counsel, the Federal Court deprived him, during the oral stage of the proceedings, of the opportunity of influencing the outcome of the case, a possibility that he would have retained had the proceedings been conducted entirely in writing.

C. Conclusion

II. THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

The Government did not put forward any separate arguments on this issue.

In company with the Commission, the Court would recall that the provisions of Article 6 para. 3 (c) (art. 6-3-c) represent specific applications of the general principle of a fair trial, stated in paragraph 1 (see the Deweer judgment of 27 February 1980, Series A no. 35, p. 30, para. 56). Accordingly, the question whether paragraph 1 (art. 6-1) was observed has no real significance in the applicant’s case; it is absorbed by the question whether paragraph 3 (c) (art. 6-3-c) was complied with. The finding of a breach of the requirements of paragraph 3 (c) (art. 6-3-c) dispenses the Court from also examining the case in the light of paragraph 1 (art. 6-1) (see, mutatis mutandis, the above-mentioned Deweer judgment, Series A no. 35, pp. 30-31, para. 56).

III. THE APPLICATION OF ARTICLE 50 (art. 50)

The Court notes, as regards the first claim, that it is not empowered under the Convention either to annul the Federal Court’s judgment or to direct the Government to disavow the passages complained of (see, mutatis mutandis, the Marckx judgment of 13 June 1979, Series A no. 31, p. 25, para. 58, and the Dudgeon judgment of 24 February 1983, Series A no. 59, p. 8, para. 15). Without expressing any opinion on those passages, it adds that they cannot be regarded as the consequence of the breach of Article 6 para. 3 (c) (art. 6-3-c).

In fact, Mr. Pakelli has not so far paid his lawyer for representing him before the Federal Constitutional Court: Mr. Wingerter did not send him a note of his fees until 7 February 1982 and he stated that it would be in order to defer payment, having regard to the applicant’s financial difficulties. In a memorial of 16 June 1980 filed with the Commission, Mr. Wingerter had pointed out that he had not yet received any fees for the proceedings in question and that he had not asked for any ("ein Honorar gar nicht erst gefordert") since he knew his client to be without means.

Nevertheless, neither these statements nor the other documents before the Court show sufficiently clearly that there has been any waiver. Indeed, as the Commission’s Delegate rightly pointed out, it is not surprising that Mr. Wingerter, knowing his client’s financial circumstances, decided not to send him a note of his fees at an earlier date (see the X v. the United Kingdom judgment of 18 October 1982, Series A no. 55, p. 18, para. 24). The Court would here point out, as did the Delegate, that in a human rights case a lawyer will be acting in the general interest if he agrees to represent or assist a litigant even if the latter is not in a position to pay him immediately.

As regards the argument based on the statutory limitation of Mr. Wingerter’s right to recover the debt due to him, this is not a matter of public policy and could be relied on only by Mr. Pakelli himself.

Deciding on an equitable basis, the Court finds that the sum of DM 668.96 claimed for fees and expenses is reasonable.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that there has been a violation of paragraph 3 (c) of Article 6 of the Convention (art. 6-3-c);

2.  Holds that it is not necessary also to examine the case under paragraph 1 of Article 6 (art. 6-1);

3.  Holds that the respondent State is to pay to the applicant, in respect of legal costs and expenses, the sum of six hundred and sixty-eight German marks and ninety-six pfennigs (DM 668.96) and rejects the remainder of the claim for just satisfaction.

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-fifth day of April, one thousand nine hundred and eighty-three.

Gérard WIARDA

President

Marc-André EISSEN

Registrar